R. v. Hartling, 2013 ONCJ 780

Sault Ste. Marie COURT INFORMATION No. 632 Citation: R. v.

Hartling , 2013 ONCJ 780 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — GORDON HARTLING Before Justice John Kukurin Heard on June 2, 2013 Reasons for Judgment released on August 6, 2013 David Kirk ................................................................................................................. for the Crown Stacy Tijerina................................................................................ for the Accused, Gordon Hartling KUKURIN J. [ 1 ] These are the Reasons for my decision on an application brought by the accused for an order recusing me as trial judge in this case, and for a declaration of mistrial. [ 2 ] The basis for these claims is the questioning by me, as the trial judge, of the complainant during the course of the trial. [1] The accused argues that this questioning created an appearance of unfairness and/or a reasonable apprehension of bias in the proceeding, thereby violating the principle of judicial impartiality. [ 3 ] The crown opposes the application, opposes the claim for an order recusing me from continuing to preside in this case as the trial judge, and opposes the claim for a declaration of a mistrial.

The trial was adjourned at the request of the accused and remains uncompleted pending the outcome of this recusal application. The crown wants the trial to proceed to its conclusion with me to continue to preside. Background [ 4 ] The salient facts are concisely set out in the factum filed by the accused (Part II Statement of Facts) with which the crown essentially agrees. The crown called the accused’s mother as one of its main witnesses on the second day of trial. She was questioned in chief by crown counsel. She was then cross examined by defence counsel.

She was then re-examined briefly by crown counsel. [ 5 ] Prior to being excused as a witness, she was asked by me, as the trial judge, to bring her mind back to questions put to her and answers made by her in her examination in chief. It was pointed out to her that there was what appeared to be a narrative gap in her testimony. Although the court’s comment to her was not technically an interrogative, the context of this dialogue, and the nature of my judicial comment clearly invited some response from this witness.

In this sense, it was judicial ‘questioning’. [ 6 ] Following the witness’ response, defence counsel asked for an opportunity to make an objection in the absence of the witness. She was temporarily excused from the courtroom. Thereupon, both counsel made a number of submissions in a discourse with the court, all of which has since been transcribed, and a transcript filed on this application. The witness was recalled. No further questions were put to her by the court. Both counsel were invited to ask further questions. Crown counsel declined. Defence counsel asked one question.

The proceeding adjourned for the lunch break. On resumption in the afternoon, defence counsel sought and was granted an adjournment of the trial to allow him time to consider whether or not to pursue an order of recusal and a mistrial.

The Law [ 7 ] Each counsel provided, in addition to their helpful facta , a casebook of authorities relating to the issue of judicial recusal and declaration of mistrial, in particular, founded on reasonable apprehension of bias. [ 8 ] Both counsel agree that the current leading jurisprudence on reasonable apprehension of bias is the Nova Scotia case of R.D.S . [2] , a 1997 decision of the Supreme Court of Canada. This case did not involve judicial questioning of any witness during the trial. Rather, its genesis was in judicial comments, made somewhat gratuitously, by the youth court trial judge, in response to a

rhetorical question by crown counsel during the course of delivery of oral reasons for her acquittal of the young person in that case. These comments were challenged by the crown as raising a reasonable apprehension of bias in an appeal to the Nova Scotia Supreme Court which allowed the appeal and ordered a new trial. This was upheld on the young person’s appeal to the Nova Scotia Court of Appeal.

The Supreme Court of Canada, in a 4:3 decision, overturned the Nova Scotia Supreme Court and the Nova Scotia Court of Appeal, and restored the youth court judge’s acquittal. [ 9 ] This seminal case on reasonable apprehension of bias is instructive, in both its majority and its dissenting Reasons for the analysis of what bias is, for what the test is for a finding of reasonable apprehension of bias, and for what the factors are that are to be considered in determining this issue.

Among these factors are the existence of a presumption, where the onus rests on an application such as this, what is the required standard of proof, and what the court must rely upon in making such a determination. [ 10 ] A number of other cases had also been provided for my review on this recusal application. In several of them, the factual underpinning for the recusal of the presiding judge was the questioning by that judge of witnesses (sometimes including the accused) during the course of the proceeding. It is not judicial questioning of witnesses in itself that is objectionable in these cases.

It is the inappropriate judicial questioning that can result in a reasonable apprehension of bias.

In some cases, it is how this judicial intervention takes place that may determine the issue. [3] [ 11 ] The following legal principles can be distilled from R.D.S . and the other case authorities provided to me by counsel. [ 12 ] Firstly, there is a strong presumption that judges will not only be, but will appear to be impartial. [ 13 ] Secondly, the onus of demonstrating perceived judicial bias lies on the person who is alleging its existence. [ 14 ] Thirdly, the threshold for a successful allegation of reasonable apprehension of bias is a high threshold because it questions not only the personal integrity of the judge in question, but also that of the administration of justice. [ 15 ] Fourthly, actual bias need not be shown. [ 16 ] Fifthly, a suspicion of judicial bias is insufficient.

What must be shown is a likelihood or a probability of bias. [ 17 ] Sixthly, the test for finding a reasonable apprehension of bias is that set out by deGrandpre J. in Committee for Justice and Liberty v.

National Energy Board [4] , a test that has been adopted and approved now for well over three decades: “[T]he 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 “what would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude…” [ 18 ] Seventhly, the reasonable and right minded person referred to in the deGrandpre elucidation of the test “… must be an informed person, with knowledge of all relevant circumstances, including the traditions of integrity and impartiality that form a part of the background and apprised also of the fact that impartiality is one of the duties that judges swear to uphold” [5] [ 19 ] In

summary, the test is not based on what was in the mind of the judge at the time of the impugned judicial conduct. Nor is it based on the personal feelings of the accused on observing this judicial conduct.

Rather, the test applied by the courts looks at the impression which would be given to other people. [ 20 ] The test has a two-fold objective element: - The person considering the alleged bias must be reasonable - The apprehension of bias itself must also be reasonable in the circumstances [ 21 ] It is almost trite that a reasonable apprehension of judicial bias is dependent on the peculiar circumstances of the case in which it is alleged to have taken place. [6] Accordingly, in the application of the test, the tribunal deciding whether a reasonable apprehension of bias arose must ascribe to the reasonable and right-minded person referred to in the test, a knowledge of those circumstances.

This hypothetical arbiter must be an informed one. [ 22 ] Reasonable apprehension of bias can occur in a variety of ways. When the impugned judicial conduct consists of interventions in a case by judicial questioning of witnesses, there are other, more pertinent factors that are looked at by the court charged with determining whether a reasonable apprehension of bias arose. [ 23 ] Firstly, the degree of intervention is relevant.

Some courts have counted up the total number of questions that were put to a particular witness and how many of them were put by the judge. [7] When the judicial intervention is excessive, amounting in some instances to usurping the role of counsel, this, of itself, may compromise the appearance of a fair trial. [ 24 ] Secondly, the timing of the judicial questioning is an important consideration.

Judicial intrusion during the course of questioning of a witness by counsel, especially during examination in chief, can be interruptive, can prematurely put questions that effectively destroy the strength or the strategic direction of questioning by counsel, or can simply disrupt the sequence of questions that counsel had decided was most appropriate and effective to present his or her case. Premature judicial questioning during examination in

chief may pre-empt the efficacy of cross examination and lead to an attenuation of the testing of the evidence presented by the witness. The judicial motives may be admirable; the end result may not. The role of questioning of witnesses in a trial is primarily the role of counsel and should generally be respected by the trier of fact.

It has been suggested that judicial questions to a witness, when they do occur, are better off put after counsel have finished their questioning of that witness. [8] [ 25 ] Thirdly, the manner in which questions by a judge are put to a witness can contribute to the determination of whether such conduct amounts to a reasonable apprehension of bias. Leading questions, those suggesting an answer, or aggressive questions typical of cross examination may be more objectionable than those typically seen in examinations in chief.

In addition, the tone of voice of the questioning judge (although often very difficult to discern from a subsequent transcription), especially if accompanied by judicial comments showing displeasure, disapproval or disparagement of a witness, or of counsel, or of the evidence, may be, if intemperate, yet another determinant of whether intervention crosses the line of reasonable apprehension of bias. [9] [ 26 ] Fourthly, the nature of the judicial questions may play an important role in determining reasonable apprehension of bias.

It is almost universally accepted that judges may intervene in the adversarial debate that constitutes a trial. In fact, the Supreme Court of Canada has stated in Brouillard : [10] “We … also believe that it is sometimes essential for him to do so for justice in fact to be done. Thus a judge may and sometimes must ask witnesses questions, interrupt them in their testimony and if necessary call them to order. The nature of the judicial questions can sometimes be inferred from the reasons why they are asked. Those reasons may be explicitly stated or may be apparent from the circumstances.

For example, judicial questions seeking clarification of prior testimony are frequently encountered and are generally acceptable. Questions that seek to elicit information not previously adduced in the evidence may or may not be appropriate. [ 27 ] Fifthly, there may be a cumulative effect resulting from the judicial intervention that leads to the conclusion that a reasonable apprehension of bias exists. The combination of the degree of judicial questioning, the type of questions put to the witness, how they were asked, when during the trial process the intervention(

s) took place, and whether they were accompanied by other judicial conduct such as pejorative comments or disapproving gestures may convince a reviewing court that the judicial conduct created unfairness in the trial process. [ 28 ] Sixthly, what should also be considered is the procedural context surrounding the judicial intrusion. Were counsel permitted to ask further questions about matters arising out of responses to judicial questioning? Did they, in fact, do so? When during the trial process did the impugned judicial conduct take place? Was it at a critical point in the trial?

Were objections made to the judicial questioning? Were they made at the time it occurred or at some later time? Did the objections arise during the course of the trial, or after all of the evidence was in, or after a rendering of a decision in the case? [ 29 ] Finally, and perhaps most importantly, is the effect or result of the criticized judicial conduct on the trial. Judicial questioning inevitably invites a witness response. That response is under oath and, as viva voce testimony, is part of the evidence in the case.

It may well be critical evidence on some very important issue, perhaps evidence not previously elicited by the questioning of any of the counsel. Does the fact that such evidence arose from judicial intervention give rise to a reasonable apprehension of bias? In criminal prosecutions, it is the responsibility of the crown to prove, with evidence, the case against the accused, beyond a reasonable doubt.

Where the crown, for whatever reason, does not elicit evidence that appears to be, not only desirable but available, is the judicial intervention that brings forth this evidence tantamount to the court siding with the crown, helping the crown discharge its onus, and thereby creating a perceived bias against the accused? Does the converse result in a similar perception when the judicial questioning evokes evidence favourable to the accused or attenuates the evidence of the crown?

Discussion and Analysis [ 30 ] The essence of a reasonable apprehension of bias is that the trial judge has departed from the accepted standard of judicial conduct. However, all judges are not the same in their trial conduct. There are huge variations in how different judges preside at trials. These disparities can usually be accommodated within the parameters of accepted judicial trial conduct. However, some conduct may cross the line. Where that line is drawn has to be determined in the context of the effect of that conduct on the fairness of the trial.

At the end of the day, trial fairness is the ultimate touchstone to determine if the disaffected party should have some remedy. All litigants are entitled to fairness at trial. [11] The classic test enunciated by deGrandpre J., approved in R.D.S ., and applied universally in our Canadian jurisprudence, hinges on trial fairness as seen through the eyes of a reasonable, right-minded and informed person. [ 31 ] In case law, there are two main scenarios in which determinations of reasonable apprehension of bias generally arise.

The first is that where a second court is mandated to determine whether a reasonable apprehension of bias arose in a prior court proceeding. This typically comes about as the basis for trial unfairness in an appeal of that court’s decision. However, there are other contexts in which one court is asked to review the judicial conduct of another court with a view to deciding trial fairness. [12] [ 32 ] The second scenario is that in which the determination of reasonable apprehension of bias is required from the very judge whose conduct is the basis for this allegation.

The present case is a prime example of this. [13] This presents a more difficult set of circumstances in which this kind of finding is sought. The test should be the same test regardless of who is deciding perceived bias. In the test, it is the reasonable, right-minded and informed person whose view of the impugned judicial conduct (or circumstances) is the criterion. However, this person is a hypothetical person.

He or she exists only in the mind of the tribunal charged with making this determination. [ 33 ] It is arguably more difficult for the judge whose conduct is being questioned to put himself or herself in the shoes of this hypothetical arbiter than it is for a tribunal with no prior involvement in the case. Some degree of subjectivity is almost impossible to suspend.

Moreover, the judge in this second scenario inevitably has more knowledge of, more appreciation for, and more feelings about what transpired in the proceeding that raised the question of reasonable apprehension of bias than could anyone else who wasn’t there at the time. This is not by any means an advantage in the context of a reasonable apprehension of bias determination. I expect that the almost automatic first reaction of many a judge facing an allegation of perceived bias would be “Who, me?”

[ 34 ] Reduced to simplest terms, a criminal trial involves a decision maker whose job it is to decide if, on the evidence in a case, there is, or is not, sufficient information by way of admissible evidence, to conclude beyond any reasonable doubt, that the accused person committed the offence with which he or she is charged. [ 35 ] The forum in which decisions are made to convict or acquit an accused is one that operates on an adversarial foundation. The operative premise is that the (usually only) two sides will elicit for the court the salient facts underlying the offence charged.

Applying weight, if any, to such evidence, and considering the applicable law, the presiding judge must decide if the offence charged is proven to the requisite criminal standard. [ 36 ] This does not mean that a judge’s role is simply one of listening and deciding. There is a well recognized judicial discretion for more extensive judicial participation in the trial process which extends to the questioning of witnesses. “The nature and extent of a judge’s participation in the examination of a witness is no doubt a matter within his discretion, a discretion that must be exercised judicially.

I conceive it to be the function of the Judge to keep the scales of justice in even balance between the Crown and the accused.

There can be no doubt in my opinion that a Judge has not only the right, but also the duty to put questions to a witness in order to clarify an obscure answer or to resolve possible misunderstanding of any question by a witness, even to remedy an omission of counsel, by putting questions which the Judge thinks ought to have been asked in order to bring out or explain relevant matters.” [14] [ 37 ] The judge deciding the guilt or non-guilt of an accused was not present when the alleged acts which form the basis for offence charged took place.

The judge essentially hears a story (or perhaps more than one story) about what happened sometime in the past. The story is not always one continuous narrative. It is not always chronological. More often than not, it is in bits and pieces from several sources who were present when the alleged acts occurred. Sometimes these bits and pieces also relate to times and events before these acts took place; sometimes to those that took place afterwards. [ 38 ] The judge is not privy to all of the things known to counsel. In fact, most judges, at the commencement of a trial are in a factual vacuum.

All they may know is the name of the accused person, the offence(

s) with which he or she is charged, and brief details, if any, contained in the information on which the accused is arraigned. In absence of opening statements by counsel (a rarity in non jury trial courts), the judge has no knowledge of the theory of the case of either crown or defence, or of the witnesses proposed to be called, or what knowledge they may have relevant to the issues. In fact, many times a judge has no idea as to whether a particular bit of testimony is going to be relevant until well into the trial itself.

This judicial unenlightenment, ironic as it may seem to some, actually fosters judicial impartiality. It is desirable that the mind of a judge approaching a trial be as blank as it can be. [15] [ 39 ] Although the trial is an adversarial process, it is not, and should not be a game where the better player wins. The trial is the opportunity for the facts to emerge that form the grounds for the offence charged. It is crucial that the decider understand what those facts are. In short, he or she who is required to make the decision of the accused’s guilt must both know and understand the story of what took place.

Accordingly, where the narrative presented through the examination of witnesses by counsel leaves a story incomplete, or incomprehensible, the judge may intervene, albeit appropriately, to elicit testimony in an attempt to rectify such deficiencies. [ 40 ] In the present case, the entire testimony of the accused’s mother has been transcribed. The transcript shows one judicial intervention during her examination in chief.

This was merely to identify, for the record, which of her fingers she was indicating as having been broken. [16] [ 41 ] The transcript shows two judicial interventions during cross examination by defence counsel. One arose because of a crown objection to a question asked by defence counsel. The intervention involved an explanation to the witness as to why she was temporarily being excluded from the courtroom, and a ruling on the objection.

The second was to clarify whether the witness’ answer of “Right” meant right as opposed to left, or right as opposed to wrong. [ 42 ] There was no judicial intervention during re-examination. Both counsel concluded their questioning of the witness.

No issue was taken to the foregoing interventions. [ 43 ] The basis for the allegation of reasonable apprehension of judicial bias was the court’s questioning of the accused’s mother following her response to the final question put to her in re-examination, and before she was excused. [17] This passage in the transcript is clear and obvious in the reason why the court asked the witness what it did ask. It was to clarify what was a logical gap in what she had recounted as having taken place when she was questioned in chief.

Cross examination and re-examination had not addressed this apparent discontinuity in her narrative. That there was such a break in her story was recognized by her own reference to this as a “void”. [ 44 ] There was no objection made by either counsel to this exchange between the court and the witness as it was taking place. It was not until the witness had provided a reason for this gap that defence counsel raised an objection. In fact, the objection was not so much directed at the judicial questioning as it was to the introduction into evidence of what the witness said in response.

Specifically, she said (at Transcript Page 30, Lines 17 to 21): “A. …the reason for that is that’s when he hit me and knocked me out. And so when I did come to, I – that’s when I saw Mike. I didn’t get down the hallway. I didn’t get anywhere except beside the dining room table” [ 45 ] Clearly, the witness implicated the accused in an assault on her, despite the fact that she does not identify him by name. This particular assault was not elicited in prior examination. In fact, the greater part of her evidence related to a subsequent incident which resulted in the multiple injuries that she claims she suffered.

That she ascribed this subsequent incident and her resulting injuries to the accused was clear from an earlier response given by her in her examination in chief (at Transcript Page 13, Lines 1 to 2):

“A. I love my son. I can’t believe he did that to his mother.” [ 46 ] My judicial intervention thus introduced one further bit of factual evidence that was new in this case. It had not previously been adduced. There is clearly some relevance of this evidence to at least one of the charges which faces the accused. [ 47 ] That the emergence of this new factual evidence was objectionable to the accused is, I believe, evident from the nature of the objection made at that point by defence counsel.

The request then made to the court was “ … not to consider this evidence given now, given the fact that we’ve both completed our examinations in cross and in chief.” I neither acceded to nor refused this request by counsel for the accused. [ 48 ] The path of least resistance is to simply recuse myself from the case and declare a mistrial. However, I would have to do so for the reason that my questioning the witness has raised a reasonable apprehension of bias and has rendered the trial unfair to the accused.

I cannot conclude, in the circumstances of this case, that any reasonable apprehension of bias as it is defined in the jurisprudence exists, nor can I conclude that trial unfairness has resulted due to my intervention. [ 49 ] The indicia that are mentioned in case law as favouring a finding of reasonable apprehension of bias are notably absent in this case. There was really only one judicial ‘question’ put to the witness. It was neither a leading question nor one that suggested any particular answer. It did not interrupt nor interfere with the examination of the witness by either counsel.

It was put to the witness after both counsel had asked the witness whatever they wished to ask. There was no cumulative effect resulting from my intervention that could reasonably be construed as amounting to trial unfairness. There are no allegations of disparaging comments or gestures on my part during any portion of the trial. [ 50 ] The judicial questioning in this case was for the purpose of clarifying an inconsistency, or at least a missing part of a story that was recounted by the witness in her examination in chief.

Unquestionably, the witness’ response filled the gap left following questioning by both counsel. Can I say that this judicial questioning, in these circumstances, even taking into account the response made by this witness, was, in the mind of a reasonable, right minded and fully informed person, such a departure from acceptable judicial conduct that it raised in such person a reasonable apprehension of bias? I cannot reach this conclusion.

I cannot intuit that this hypothetical person would perceive this instance of judicial intervention as favouring one side at the expense of the other, or of showing a closed judicial mind, or of interfering so excessively with the trial process that it has resulted in unfairness to the accused. [ 51 ] As for any prejudice resulting to the accused as a result of what the witness said in responding to my judicial questioning, this is not an element of the test by which reasonable apprehension of bias is to be determined.

Our court of appeal has said as much in Valley : “The ultimate question to be answered is not whether the accused was in fact prejudiced by the interventions but whether he might reasonably consider that he had not had a fair trial or whether a reasonably minded person who had been present throughout the trial would consider that the accused had not had a fair trial…” [ 52 ] Moreover, the accused, through his counsel was permitted to, and in fact did, further examine the witness to explore or to attack the new factual evidence that had emerged from the witness. [ 53 ] By my reckoning, this reasonable and right minded, informed person would have perceived the narrative gap in the witness’ evidence and be left with some mental discomfort. [18] The circumstances prevailing at the time of the impugned judicial questioning cannot be disregarded.

The witness was about to be excused. She was not expected to return to testify further. According to her story, there was no one else present and able, other than perhaps the accused (and there was no indication that the accused would be called upon to testify), to provide the judicially requested information. More importantly, this witness was the person best positioned and best able to respond to the judicial inquiry made of her.

This represented the opportune moment and perhaps the last opportunity for the court to have this witness’ account of the events, as complete as she could make them. [ 54 ] The test for reasonable apprehension of bias requires the reasonable person to view the impugned judicial behaviour realistically and practically before arriving at any conclusion.

In this case, it seems to me that a realistic and practical assessment of the judicial intervention could not possibly result in a conclusion of trial unfairness requiring a recusal and the declaration of a mistrial. [ 55 ] The prevailing jurisprudence surrounding this issue shows that the accused has a high onus in displacing the very strong presumption of impartiality that applies to all judges. That onus has to be met through convincing evidence.

In this case, I cannot say with any degree of confidence what specific evidence the accused is relying upon to rebut this presumption, or to support a finding of reasonable apprehension of bias. If it is that the court stepped into an arena generally populated only by counsel, that is not enough. If it is that new facts were elicited, even if those facts are prejudicial to the accused, that also is not enough.

If it is that the departure from accepted judicial conduct was so excessive that it met the test for reasonable apprehension of bias, I disagree. [ 56 ] For these reasons, the application of the accused for an order of recusal from this trial and for a declaration of mistrial is dismissed. [ 57 ] I again thank both counsel for their facta , their submissions on this application, and their casebooks, all of which were of great assistance to me in dealing with this issue. Released: August 6, 2013

_____________________________________ Justice John Kukurin, Ontario Court of Justice