HIS MAJESTY THE KING RESPONDENT - v. -, 2023 SKKB 255

KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 255 Date: 20 23 11 27 Docket: CRM-RG-00360-2018 Judicial Centre: Regina BETWEEN: HIS MAJESTY THE KING RESPONDENT - and - MOHAMMAD MAHDI ZABIHULLAH APPLICANT PUBLICATION RESTRICTION: The publication of these reasons is restricted pursuant to ss. 486.4(1) of the Criminal Code such that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way.

RESTRICTION ON PUBLICATION: By court order made under subsection 517(1) of the Criminal Code , these reasons shall not be published in any document, or broadcast or transmitted in any way until the end of the trial. The restriction on publication has been lifted pursuant to the judge’s order of January 9, 2024. Counsel: Arjun Shankar for the Crown Sharon R. Fox for the applicant REASONS FOR ORAL DECISION DATED NOVEMBER 27, 2023 ON RECUSAL APPLICATION MITCHELL J. WRITTEN REASONS: NOVEMBER 29, 2023 I.

INTRODUCTION [ 1 ] The Crown has requested guidance from me respecting whether I should continue as the trial judge in this case or recuse myself and declare a mistrial.

[2] In response, defence counsel submits that I should recuse myself because I recently expunged Mr. Mohammad MahdiZabihullah’s guilty plea to a charge of sexual assault against the complainant, his former girlfriend. Originally, he was charged withaggravated sexual assault, as well as common assault. See: R v Zabihullah, 2022 SKKB 282 [Zabihullah]. [3] Although this matter was framed by counsel as a motion for directions, it is, for all intent and purposes, an applicationfor judicial recusal. I will treat it as such. II.

LAW ON JUDICIAL RECUSAL [4] It does not appear that there is a clear test for judicial recusal. In this province, however, judges of this Court generallyhave applied the “reasonable apprehension of bias” test. See, for example: R v Goodpipe, 2018 SKQB 189 at paras 7 and 9 [Goodpipe];R v Hahn, 2015 SKQB 88 at paras 7-9; Patel v Saskatchewan (Health Authority), 2020 SKQB 194 at para 109 [Patel], and R v Podolski,2018 SKPC 13 at para 6. [5] The reasonable apprehension of bias test is well-known.

It asks whether “an informed person, viewing the matterrealistically and practically -- and having thought the matter through … would … think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly”: Committee for Justice and Liberty v National EnergyBoard, (SCC), [1978] 1 SCR 369 at 394.

See also: Wewaykum Indian Band v Canada, 2003 SCC 45 at para 60, [2003] 2SCR 259; R v S. (R.D.), (SCC), [1997] 3 SCR 484 at para 31, and R v Valente, (SCC), [1985] 2 SCR673 at para 12. [6] There is, however, a distinction between a judicial recusal and a judicial disqualification. Judicial disqualification islegally required when a party demonstrates a reasonable apprehension of bias. Judicial recusal, on the other hand, may be appropriate inmatters where this standard is not fully satisfied.

As Kalmakoff J. (as he then was) stated in Goodpipe, at para 7: “when faced with asituation that would give rise to a potential appearance of bias, judges often recuse themselves from cases which they are not legallydisqualified from hearing, out of an abundance of caution”.

See also: Patel at para 9. [7] Similarly, the British Columbia Court of Appeal stated R v Quinn, 2006 BCCA 255 at para 44, 209 CCC (3d) 278[Quinn] that the “tendency to err on the side of caution does not reflect the standard which must be met for disqualification, which is thatof a reasonable apprehension of bias”. [8] A review of relevant jurisprudence reveals that the preferred approach in cases like this one is “for judges to recusethemselves when, following a guilty plea, they hear detailed evidence on sentencing and the plea is withdrawn”: R v Gosselin, 2017QCCA 244 at para 48.

See also: R v Da Silva (1985), (ON CA), 18 CCC (3d) 102 (Ont CA) at 104; R v Buongiorno,2001 CarswellOnt 2385 (WL) (Ont Sup Ct) at paras 20-21; R v Pheasant, [2000] OJ No 4817 (QL) (Ont Ct

J) at para 5, and R v Burdett,[1993] AJ No 991 (QL) (Alta CA) at para 2. III. JUDICIAL RECUSAL IS APPROPRIATE [9] Applying the principles identified in the relevant authorities, I am persuaded that I should recuse myself in this matterout of an abundance of caution. My reasons follow. [10] First, I heard the evidence given by the complainant on the first day of trial. Crown counsel had almostcompleted his examination-in-chief. At that time, Mr.

Zabihullah faced a charge of aggravated sexual assault, and not the charge ofsexual assault to which initially he entered a guilty plea. [11] Second, I carefully reviewed the pre-sentence report which set out considerable and detailed informationrespecting Mr. Zabihullah’s background and present circumstances. More importantly, it explained why Mr. Zabihullah adheres to thebelief he is truly innocent of the charge of sexual assault to which he earlier pled.

This was information which in the ordinary coursewould not have been provided to me as a trial judge prior to my verdict, if at all. [12] Third, and perhaps most importantly, I heard evidence at the expungement hearing about Mr. Zabihullah’sdiscussions with his then counsel and the reason why he decided to plead to the lesser charge of sexual assault, discussions whichtypically are impressed with solicitor/client privilege. [13] Mr.

Zabihullah decided to plead guilty to the lesser charge because he had been advised that a custodial sentencefor sexual assault would be significantly less than one for aggravated sexual assault. Mr. Zabihullah testified that he had been told that asentence on a guilty plea for sexual assault would be in the range of two years rather than the range of between five to seven years uponconviction for aggravated sexual assault.

He testified that he was not happy about going to jail; however, he was advised by his defencecounsel that this was the best result he could obtain from the Crown. [14] Taking together, I find that based on these factors I am not persuaded that the “reasonable apprehension of bias”test has been satisfied. If it had, I would be legally bound to disqualify myself from continuing to preside over Mr. Zabihullah’s trial. I dobelieve that were I to continue as the trial judge, I would be able ultimately to adjudicate Mr.

Zabihullah’s guilt or innocence in animpartial manner. [15] However, I am persuaded that based on the authorities which I canvassed above I should recuse myself out of anabundance of caution. Yet, in doing so I underscore the statement of the British Columbia Court of Appeal in Quinn at para 44 that the“tendency to err on the side of caution does not reflect the standard which must be met for disqualification, which is that of a reasonableapprehension of bias”. IV.

APPROPRIATE REMEDY IS A MISTRIAL [16] In light of my finding, I conclude the only appropriate remedy is that I recuse myself from continuing as the trial

judge and declare a mistrial. In accordance with s. 669.2 of the Criminal Code , RSC 1985, c C-46 , Mr. Zabihullah’s new trial must proceed before another judge of this Court. See: Goodpipe at para 28 . [ 17 ] To conclude, I repeat my closing comments from my earlier decision in Zabihullah at para 57 : [57] I am aware of the costs to the justice system occasioned by my decision in this case. A long period of time has elapsed since the offences allegedly occurred, and the impact on the complainant, the accused and others cannot be underestimated. However, the proper administration of justice requires that Mr.

Zabihullah’s guilty plea be vacated[.] [ 18 ] To this I would add that a mistrial must be declared. J . G.G. MITCHELL