R. v. Fraser, 2023 NSSC 45

SUPREME COURT OF Nova Scotia Citation: R. v. Fraser , 2023 NSSC 45 Date: 20230417 Docket: CRP 516362 Registry: Pictou Between: His Majesty the King Appellant v. Donn Lawrence Fraser Respondent Judge: The Honourable Justice D. Timothy Gabriel Heard: October 25, 2022, in Pictou, Nova Scotia Counsel: Darcy MacPherson, for the Appellant (Crown) Stanley W. MacDonald, K.C. and J.

Paul Niefer, for the Respondent (Defence) By the Court: [ 1 ] The Respondent, Donn Fraser, was charged that he did, on or about May 26, 2021, at or near New Glasgow, Nova Scotia, engage in threatening conduct directed at Mary Jane Saunders, thereby causing Mary Jane Saunders to reasonably, in all circumstances, fear for her safety, contrary to section 264(2) (

d) of the Criminal Code . [ 2 ] At the time of the alleged offence, both Mr. Fraser and Ms. Saunders were partners in the same law firm, situate in New Glasgow, Nova Scotia, albeit the Complainant was a member of the firm's management committee, while the Respondent was not. The trial took place over two days, on April 5, 2022 and May 6, 2022, in the Provincial Court of Nova Scotia. The Court heard from five witnesses: three civilians and two police officers. [ 3 ] In a decision rendered on June 23, 2022, ( R. v.

Donn Fraser , 2022 NSPC 24 – "the decision") His Honour, Judge Alain Bégin ("the Trial Judge") acquitted the Respondent. The Crown has appealed to this Court sitting in its capacity as a

Summary Conviction Appeal Court. The grounds referenced in the Notice of

Summary Conviction Appeal follow: 1. The Trial Judge erred in law by making comments indicating an inclination to acquit immediately after the first of five Crown witnesses completed her testimony, thereby raising an appearance of bias or actual bias in favour of the accused. 2. Such other grounds as may become apparent from the trial transcript, once it is available. Factual

summary [ 4 ] I will briefly provide some of the factual background to provide context to my decision. [ 5 ] The trial, which had originally been scheduled for one full day, began with the testimony of the Complainant, Ms. Saunders. Rather than break for lunch at 12:30 p.m., the Trial Judge indicated a preference to complete her testimony before that break occurred. She finished approximately one hour later. The Trial Judge addressed her after she had given her evidence in the following terms: You can step down. You're good. I'll just encourage you if you testify again in court, you work on impartiality. When Mr.

MacDonald is talking to you and referring to him as Donn, you're calling him "the accused." It doesn't bode well, just so you know. ( Transcript, pp. 157, ll. 21 – 23 and 158, ll. 1-2 ) [ 6 ] Following this exchange, the Trial Judge inquired of the Crown as to how many more witnesses they intended to call. The Crown responded to this by saying there were four additional witnesses, and added that both of the civilian witnesses would be fairly long.

[ 7 ] This was followed by a lengthy exchange between the Trial Judge and Crown counsel: THE COURT: Okay. So … The crux of this is her. She’s the named individual, and we’ll call it “victim” for the sake of where we are right now . Ms. Saunders is the victim. MR. MACPHERSON: Victim’s fine. In the Criminal Code it’s a defined term that … THE COURT: Yeah, all right, just … MR. MACPHERSON: … includes the term “alleged”. THE COURT: … yeah. So… I have no idea where this is going but it’s not going well in terms of conviction . I’ll tell you this now.

What you have here – and I’m going to keep an open mind for the rest of it , but you think this through over lunch time. You have an aggressive and annoying partner at a law firm who likes his way . He’s been there a long time. And you have a very emotionally unfit, unprepared person who’s managing partner-one of the three managing partners . Seems to me – I’ll keep an open mind, I haven’t heard the rest of the evidence – but it seems to me that a lot, and perhaps all of what was discussed was in the realm of her job as one of the managing partners . I think you have a very steep hill to climb.

I’m not so sure you want to spend the rest of the afternoon climbing that hill . I think, I think, I think the prosecution’s got to think through. It’s a choice you’re, you gotta make and I’ve dealt with you for quite some time now, so I suspect I know where this is going . But that being said um, here’s the test, okay? It’s a five-part test from the Court of Appeal of Alberta in 1997 . Must prove: The accused engaged in conduct noted in 264D, that’s the defined conduct. The complainant was harassed. The accused- third point-and this is Sillipp, S-I-L-L-I-P-P, 1997.

The accused knew that the complainant was harassed or was reckless or willfully blind as to whether the complainant was harassed. Point four: The conduct caused the complainant to fear for her safety or the safety of anyone known to her. And here’s the big hill you have to climb, point five: The complainant’s fear in all the circumstances was reasonable. I think you have a serious problem with her fear being reasonable , in light of the machinations of a law firm that was imploding. They chose sides; she was on the other side. You have serious problems there, but I’m gonna, I’m gonna keep it open .

And what’s the definition of harassment? As per the Ontario Court of Appeal in Kosikar [sp?] ’99: Feeling tormented, troubled, worried, continually or chronically plagued, bedevilled and badgered. And if there are repeated communications, which I guess you can allege from the emails, I need to consider the context, the content and the repetitious nature. That’s the B.C. Court of Appeal.

So, we’ll stop for lunch; we’ll come back at quarter after one – got 45 minutes – but I seriously encourage you to consider my comments and you can obviously choose to do as, as you wish, but I … This is the main, this was your main witness. MR. MACDONALD: Your Honour, I wouldn’t be doing my job if I didn’t also say that under 264-2D, he has to direct threatening conduct towards her. MR. MACPHERSON: And Your, Your Honour, the, the Crown has a significant concern that the Court has made a decision. The Court – not, not before argument – but before the Crown has presented its case.

And it sounds, it feels like uh, uh, this decisions already made . THE COURT: It has not been. I made it from the beginning. I just told you the concerns that are here now, as you progress down this road . I asked how many witnesses you have. MR. MACPHERSON: Well … THE COURT: I told you this is your main, you said your main witness. I said: Here’s your concerns that you have . MR. MACPHERSON: I, I, I’m sorry, but I know my concerns. THE COURT: Yeah. MR. MACPHERSON: I know my concerns before the trial starts, and I know them as they develop during the trial. And I intend to address my concerns.

However, now I have to consider – what I will be considering over lunchtime is whether or not I will be asking the court to uh, make a decision uh, subject to me maintaining the right to appeal. ( Transcript, pp. 159, l. 1 to 162, l. 12 )

[Emphasis added] [ 8 ] After the lunch break, proceedings resumed and counsel led off with this: MR. MACPHERSON: Uh, so, Your Honour, I anticipate making a motion based on uh, the comments that Your Honour made after the first witness stepped down. And uh, Mr. uh, MacDonald and I were discussing uh, uh, what was actually said and, and I think we’re both of the view that we’d like to hear the entire comments played back, if that’s possible. MR. MACDONALD: And I suppose, just for the record, what my friend has said when he’s gonna make a motion, is a motion for recusal.

So, that’s why I said that if we’re going to argue about what was said, then we should hear what was said. ( Transcript, p. 164, ll. 13 – 22) [ 9 ] This is followed by some discussion about rewinding the tape, so that the "pre-lunch" exchange could be heard once again. While the clerk was attending to that, the Trial Judge said "... And while we are waiting for that, I'll say that I have a duty to case manage my Court, and that's what I was doing." [ 10 ] After replay, the Crown and the Trial Judge resumed their discussion: MR.

MACPHERSON: So, after the uh, testimony of the first witness prior to the lunch break, we just heard what you said, and among the things I heard was Your Honour saying: I have no idea where this is going. Your Honour saying: It’s not going well in terms of conviction. Your Honour saying: I will keep an open mind for the record. Your Honour describing the first witness as unfit and unprepared. THE COURT: Emotionally for the job. Finish the sentence. Don’t misquote me. MR. MACPHERSON: Oh, I didn’t catch that. Emo-… THE COURT: Well, it’s very important. MR. MACPHERSON: …emotionally for the job. That’s fine.

THE COURT: I said: she’s unfit and emotionally unprepared for the job of managing partner. Very important. MR. MACPHERSON: That I had a steep hill to climb, and something about spending the afternoon climbing that hill, but I didn’t catch exactly what Your Honour said about spending the afternoon climbing the hill. THE COURT: Well, you got – I said you have a steep hill to climb, where your case is. And here’s the afternoon that you’re gonna have to climb that hill that I said you have to climb. That’s your case . MR.

MACPHERSON: So … Oh, I, I thought you might have made a comment about not wanting to spend the afternoon … THE COURT: No. I said you have a steep hill to climb and you’re going to spend the afternoon doing it . MR. MACPHERSON: Okay. [Emphasis added] ( Transcript, pp. 175, l. 1 to 176, l. 5 ) [ 11 ] The Crown then asked that the Trial Judge recuse himself in the following terms: MR. MACPHERSON: Uh … In light of those comments, Your Honour, the Crown is making a motion – an application – that you recuse yourself.

In that regard – and I have to say it’s very rare in my career, that I’ve applied for a judge to recuse himself. I can only think of twice in the past. THE COURT: Including this file, back when, I believe. MR. MACPHERSON: Including this file and anoth-, another matter, I think last year. They’re, so far as I recall they’re the only times I ever asked a judge to recuse himself, and, and I’ve never, of course, asked for two recusals on one file. However, I have filed a brief on recusal under different circumstances. I’ve referred you to it earlier for one of the cases connected there.

Also attached to that brief uh, on tab four is a document entitled Canadian Ethical Principles for Judges , and it’s uh, prepared by the Canadian Judicial Council. THE COURT: Of which I’m on the committee. MR. MACPHERSON: At page … THE COURT: For [unintelligible 14:31:33]. MR. MACPHERSON: Perhaps you had something to do with the production of this document. I couldn’t determine the year it was produced. …

So, in this regard and context, Your Honour’s uh, statement that you will keep an open mind, has to be seen in the light of Your Honour’s statement that it doesn’t look good for conviction. And that, and that the Crown has a steep hill to climb . The Crown suggests that uh, under these circumstances any reasonable person who uh, is viewing this matter realistically and practically and has thought the matter through would perceive either actual bias or, or perception of bias on the part of the judge who made the comment after hearing only one witness. Not hearing the four other witnesses who are coming.

Not hearing any argument. Making a decision . THE COURT: I did [sic] make a decision, so don’t say that again. I did not make a decision. MR. MACPHERSON: I … THE COURT: I told you my concerns. Don’t say I made a decision . MR. MACPHERSON: I’m not saying you made a decision … THE COURT: You just did. MR. MACPHERSON: I’m saying … THE COURT: You said I made a decision. Don’t say that again. MR. MACPHERSON: I said: A person … THE COURT: You said: You made a decision. MR. MACPHERSON: …who is described here would perceive that. And, and that’s exactly how it feels from this end.

THE COURT: Well, don’t say you didn’t say it. ‘Cause you said it, and you meant it. Here’s the reality. Impartiality – you walk into this court totally impartial. I, I knew nothing of Mr. Fraser. I knew he was a lawyer, that was it. I knew nothing. I came into this case totally impartial. As you start to hear evidence, you shift along the spectrum as you hear different witnesses, which is what I indicated. I am keeping an open mind. I indicated that. There is no pre-judgment here. I expressed my concerns on a case-management basis . And I thought about this over lunch, and I spoke to two of my colleagues.

I have no concerns with the comments I make about being inappropriate or incorrect. I think they fit within the four squares of case management. MR. MACPHERSON: When determining … THE COURT: And also, before you finish, the very, very, very recent case from the Supreme Court of Canada – I think it starts with the letter G, I don’t recall – about um, case management responsibilities. And that’s where a judge interfered in cross-examination. I didn’t say a word till Ms. Saunders left the courtroom. That’s when I expressed my concerns. There’s no one else here. Now go ahead. MR.

MACPHERSON: Well, Your Honour uh, whether there were, were people here or not, whether the witness was present or whether the witness was not present, anybody who heard what you said, heard you say it doesn’t look good for conviction and heard you say you’d keep an open mind. THE COURT: I said three times I’d keep an open mind . MR. MACPHERSON: Yes. THE COURT: Three times. MR. MACPHERSON: Yes. But it’s very … THE COURT: You don’t believe me . MR. MACPHERSON: No, it’s very little comfort to the person who hears where the decision is headed. Uh, now, Your Honour has sort of committed yourself to a position .

THE COURT: I have not. I told you that. I said I’ve not made a decision. I did not commit myself to … I was very clear … MR. MACPHERSON: Well, the position is … THE COURT: No, I did not make a decision. MR. MACPHERSON: I didn’t say you made a decision, I said … THE COURT: Commit myself to decision, make a decision-semantics. MR. MACPHERSON: Your Honour, you’re going to allow me to speak? THE COURT: Well, I’m gonna keep, start cutting your off if you keep making total falsehoods, but go on .

MR. MACPHERSON: Okay, you’ll let me finish my sentence? THE COURT: Depending what you say, most likely, yes. MR. MACPHERSON: So, uh, Your Honour has committed to a position, and that position is that it doesn’t look good for conviction, and it’s premature . It’s a pre-judgment, and anybody looking at this would see that that’s a pre-judgment. The fact that you then say: I will keep an open mind, it doesn’t cancel out the fact that you’ve already expressed a pre-judgment that the likelihood of conviction is so slight that I should consider whether I should call anymore witnesses.

As such, Your Honour has to consider, not from your own perspective whether you’re biased, but whether the person described by de Grandpré would perceive it . ( Transcript, p. 176, l. 6 to p. 182, l. 22 ) [Emphasis added] [ 12 ] The Trial Judge then called upon Defence counsel to respond to the recusal motion, after which he gave the following oral decision on the motion: THE COURT: I will not be recusing myself. As I say, I wrote the most recent decision in Nova Scotia. Not that I’m the expert on recusal, but I encapsulated the whole law of recusal in my decision to bring it up to date in Nova Scotia.

Um, I have zero bias. I have still not made a decision, but as with every case you hear witnesses you start to sway back and forth along the spectrum of guilty/not guilty. It’s delusional to think that a judge just sits here and is an automaton as everyone says and just writes it down and you’re not thinking where is this headed? That’s delusional. You do. As you go you start to sway one way, you start to sway the other. I remember Mr. MacDonald had a uh, sex, historical sexual assault trial in Port Hawkesbury. I, I was hard on conviction as most of the start of the evidence came out.

But at the end of the day, it swung to acquittal. You sway as, as a judge, as you hear more and more evidence. I have not made a decision. I thought you’d want to hear my concerns to help you through. If you don’t want any help going forward, I’m fine with that , Mr. MacPherson. We tend to bump heads a lot. We deal each other [unintelligible 14:3:26]. Any [unintelligible 14:43:27] trial that you and I from Truro North, so that’s, that’s fine. I, I, I will not give anymore feedback ever on your trials, and I’ll just zip it and I will wait till the very end and let, let fate, let them fall where they may .

But no, I have zero, zero partiality in this matter . Zero. But I’m reacting and starting to understand and form some opinion on what’s going on as I hear the witnesses. I’ve heard one witness, asked you how many more to see where you’re headed on this. I’m curious where this is headed. Have I made a decision? No. I said three times for sure, that I was keeping an open mind. I think if you listen closely, I said I wasn’t. I had not pre-judged it. I think that’s in there as well, you’d have to listen to it. It’s very poor audio. But I’m not recusing myself. I’m not biased.

I don’t think an independent observer-well, it’s an educated and informed observer – would feel for one second that I’ve pre-judged this and made a decision. I was just trying to, as Mr. MacDonald said, just trying to move things along. I have an obligation. I have an obligation to make sure that things are dealt with appropriately. And if I have concerns, I should bring them up. So, just call your next witness. ( Transcript, p. 185, l. 14 to p. 187, l. 10 ) [Emphasis added] [ 13 ] After the Judge had rendered this oral decision, the following discussion between Crown counsel and the Trial Judge occurred: MR.

MACPHERSON: I’m sorry, Your Honour. I do not understand how that comment helps to move things along, unless it’s to get me to drop my case. Doesn’t make sense to me. THE COURT: That’s fine. Call your next witness. MR. MACPHERSON: Your Honour, my in-, my inclination had been once the recusal, once you made this decision, presuming you made this decision, that I would uh, offer no ev-, no more evidence and, and reserve my right to appeal, and not call additional evidence. However, - THE COURT: That’s a real risk, isn’t it? ‘Cause if you lost your appeal then this is done. MR. MACPHERSON: Mm hm.

THE COURT: But it’s your choice. ( Transcript, p. 187, l. 11 to p. 188, l. 3 ) [ 14 ] The Crown decided to carry on with its case. The next witness consumed the rest of the day, so the second day (May 6, 2022) was scheduled for the resumption of the trial. On that date, the trial resumed and the Crown called its remaining witnesses. The Defence

did not call any evidence. Final submissions were then heard, the Trial Judge reserved his decision which, to repeat, was released on June23, 2022. The Trial Judge’s Decision [15] The Trial Judge rendered a 127 paragraph decision, and acquitted the Respondent. It began this way: 1. This issue in this trial was straightforward - if a senior partner at a disintegrating law firm is overbearing and demanding of amanaging partner in a very stressful office dynamic due to various interpersonal issues, does this meet the threshold for a charge ofcriminal harassment pursuant to s. 264(2)(

d) of the Criminal Code? [16] Throughout the course of his written reasons, the Trial Judge made reference to the concept of reasonable doubt, how it isconstituted, the presumption of innocence, the Crown's burden, the fact that this was not a credibility contest, the process of assessingcredibility, and the constituent elements of the offence with which the Respondent was charged. [17] Conduct constituting “criminal harassment” is defined in

section 264 of the Criminal Code, which reads as follows: 264(1). No person shall, without lawful authority and knowing that another person is harassed or recklessly as to whether the otherperson is harassed, engage in conduct referred to in subsection (2) that causes that other person reasonably, in all the circumstances, tofear for their safety or the safety of anyone known to them.

(2) The conduct mentioned in subsection (1) consists of (

a) repeatedly following from place to place the other person or anyone known to them; (

b) repeatedly communicating with, either directly or indirectly, the other person or anyone known to them; (

c) besetting or watching the dwelling-house, or place where the other person, or anyone known to them, resides, works, carries onbusiness or happens to be; or (

d) engaging in threatening conduct directed at the other person or any member of their family. [18] In the Trial Judge's view, what this boiled down to, in the context of this case, was the Crown's obligation to prove thefollowing elements beyond a reasonable doubt: (

i) that Mr. Fraser engaged in threatening conduct towards Ms. Saunders; (ii) that Mr. Fraser had no lawful authority to do what he did; (iii) that Mr. Fraser’s conduct harassed Ms. Saunders; (iv) that Mr. Fraser knew that his conduct harassed Ms. Saunders; (

v) that Mr. Fraser’s conduct caused Ms. Saunders to fear for her safety; and (vi) that Ms.

Saunders’s fear was reasonable in the circumstances. (Decision, para. 19) [19] It is important to bear in mind that the Appellant does not allege that the Trial Judge, in rendering his decision, eithermisdirected himself with respect to the law, or committed any other reviewable error – its one ground of appeal alleges bias, simpliciter. [20] The Crown argues that the Trial Judge's attitude and conduct was consistently negative, and that he demonstrated a dismissiveapproach towards the Crown which, coupled with his psychological characterization of the Complainant, demonstrated either apparent oractual bias against the Crown and the Complainant.

Applicable law [21] There are two types of bias with which Courts concern themselves. The first, unsurprisingly, is actual bias. The second isapprehended bias. [22] As the Court pointed out in Geophysical Services Inc. v. Sable Mary Seismic Inc., 2012 NSCA 33: 65. …I am far from convinced that the appellants have demonstrated a reasonable apprehension of bias or bias. The main thrust of theappellant's submission was that they were not able to obtain a fair hearing as a result of the decision by the trial judge to strike the jurynotice. One of the leading cases in Canada on the issue of bias is R. v.

S.(R.D.), (SCC), [1997] 3 S.C.R. 484. In thatcase, Cory J. explored a number of key concepts about impartiality, bias and reasonable apprehension of bias. With respect to the polaropposites of impartiality and bias, he noted the authorities that establish that the word impartial connotes absence of bias, actual orperceived; and that impartiality is a state of mind in which the adjudicator is disinterested in the outcome, and is open to persuasion bythe evidence and submissions (para. 104).

Bias is a state of mind that is in some way predisposed to a particular result or that is closedwith regard to particular issues (para. 105). [23] It is generally difficult to show actual bias. As a consequence, most cases are decided upon the basis of apprehended bias,hence the plethora of decisions which deal with it.

[24] The operative legal principles which will direct the Court's analysis in this case are not controversial. In one way or another,they all advert to the fact that the bedrock upon which our legal system rests is the impartiality of its judges. The displacement of thatpresumption, in a particular case, is not a pedestrian task. As was pointed out by our Court of Appeal in R. v. Schneider, 2004 NSCA 99: 68. Nothing is more important in the legal system than the impartiality of judges. The standard of impartiality which judges must meet isa stringent one.

However, judicial impartiality is properly and necessarily presumed and as the Supreme Court stated recently, "... the lawshould not carelessly evoke the possibility of bias in a judge, whose authority depends upon that presumption.": Wewaykum Indian Bandv. Canada, 2003 SCC 45 , [2003] 2 S.C.R. 259 at para. 59. The party alleging bias must put forward serious and substantialgrounds supporting the allegation and has the burden of proving it: Wewaykum at paras. 59 and 76; R. v. R.D.S., (SCC),[1997] 3 S.C.R. 484 per Cory, J. at paras. 113 - 114.

The threshold for a finding of real or perceived judicial bias is high: R.D.S. at para.113. [Emphasis added] [25] The sentiment was once again referenced in R. v. Potter, 2020 NSCA 9, which was recently reiterated, albeit in a civil context,in Ward v. Murphy, 2022 NSCA 20: 86. In R. v. Potter, 2020 NSCA 9 the Court reviewed the test for assessing a reasonable apprehension of bias: 741. This Court canvassed the principles governing a claim of judicial bias, or reasonable apprehension thereof in Nova Scotia (AttorneyGeneral) v. MacLean. There, Saunders J.A. wrote: 39.

First, as a matter of law, there is a strong presumption of judicial impartiality, which is not easily displaced. Second, there is a heavyburden of proof upon the person making the allegation to present cogent evidence establishing "serious grounds" sufficient to justify afinding that the decision-maker should be disqualified on account of bias. Third, whether a reasonable apprehension of bias exists is"highly fact-specific". Such an inquiry is one where the context, and the particular circumstances, are of supreme importance. Theallegation can only be addressed carefully in light of the entire context.

There are no shortcuts. See Wewaykum Indian Band v. Canada,2003 SCC 45. … [Emphasis added] [26] The classic statement of the test to be applied follows: ... the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the questionand obtaining thereon the required information, that test is "what would an informed person, viewing the matter realistically andpractically ... conclude? Would he think that it is more likely than not that [the trier of fact] whether consciously or unconsciously, wouldnot decide fairly? (Committee for Justice and Liberty v.

Canada (National Energy Board), (SCC), [1978] 1 S.C.R. 369, per dissentingjudgment of de Grandpré, para. 40). [27] This is augmented by the Court’s statement in Wewaykum Indian Band v. Canada, 2003 SCC 45, where it was noted: 74. The question, once more, is as follows: What would an informed person, viewing the matter realistically and practically -- andhaving thought the matter through -- conclude? Would this person think that it is more likely than not that Binnie J., whether consciouslyor unconsciously, did not decide fairly? … 76.

First, it is worth repeating that the standard refers to an apprehension of bias that rests on serious grounds, in light of the strongpresumption of judicial impartiality. In this respect, de Grandpré J. added these words to the now classical expression of the reasonableapprehension standard: The grounds for this apprehension must, however, be substantial, and I ... refus[e] to accept the suggestion that the test be related to the"very sensitive or scrupulous conscience". (Committee for Justice and Liberty v. National Energy Board, supra, at p. 395) 77.

Second, this is an inquiry that remains highly fact-specific. In Man O'War Station Ltd. v. Auckland City Council (Judgment No. 1),[2002] 3 N.Z.L.R. 577, [2002] UKPC 28, at par. 11, Lord Steyn stated that "This is a corner of the law in which the context, and theparticular circumstances, are of supreme importance." As a result, it cannot be addressed through peremptory rules, and contrary to whatwas submitted during oral argument, there are no "textbook" instances.

Whether the facts, as established, point to financial or personalinterest of the decision-maker; present or past link with a party, counsel or judge; earlier participation or knowledge of the litigation; orexpression of views and activities, they must be addressed carefully in light of the entire context. There are no shortcuts. [Emphasis added] [28] As I consider the application of the above test, I extract the following principles from the decided case law: (

i) There is a very strong presumption of judicial impartiality; (ii) this presumption places a very heavy burden on the party seeking to rebut it;

(iii) such a rebuttal requires cogent evidence sufficient to permit a finding that the Trial Judge is disqualified from rendering a decision because of bias; (iv) a determination of whether the presumption has been rebutted is highly fact specific and contextual; (

v) an allegation of judicial bias must be considered in the context of all of the circumstances, so an isolated or piecemeal analysis is never appropriate. Analysis [ 29 ] Bearing all of the above principles in mind, I observe that the Complainant was the first witness to be called by the Crown. She was obviously the most important witness, given that the requirements of

section 264 contained a number of factors which had to be proven (six in total), two of which involved some subjectivity. These included the fact that Mr. Fraser's conduct had harassed Ms. Saunders, and that it had caused her to fear for her safety. Moreover, the Crown needed to show that her fear was (objectively) reasonable in the circumstances.

Without all six of the constituent elements having been established to the criminal standard of proof, the Crown's case could not succeed. [ 30 ] When the Complainant left the stand, the Trial Judge, apparently mindful of the fact that only one day had been scheduled for the trial, that no lunch break had yet been taken, and that it was already 1:30 p.m., inquired about the remaining number of witnesses. In the course of the conversation with Crown counsel which ensued, he referred to the Complainant as "emotionally unfit" and "unprepared".

Also, as earlier noted, he had admonished her (as she left the stand) about her use of the word "accused" instead of, apparently, "Donn" or "Mr. Fraser", as she responded to some of the questions from counsel during cross-examination. He subsequently qualified his use of the word "unprepared" as meaning "emotionally unprepared". He also referred to Mr.

Fraser as "aggressive and annoying" at least once when addressing Crown counsel, and called him “overbearing” and “demanding”, as we have seen (in para. 1) in the written decision which he subsequently delivered. [ 31 ] The Appellant takes issue with the manner in which the Trial Judge characterized the Complainant. Counsel argues that "to the impartial observer, it would look like the Judge was criticizing the victim for failing to pay sufficient respect to the accused... On the other hand, another Judge might think it inappropriate for the Complainant to refer to an accused by his or her first name”.

He argues that the Trial Judge’s subsequent reference to the fact that all of this "...doesn't bode well, just so you know" as she left the stand was a manner of "telegraphing" the comments to counsel which followed her departure from the court ( Appellant’s brief, paras. 21-22 ). [ 32 ] The Crown next takes aim at the following passage from page 159 of the transcript: The Court: Okay. So... the crux of this is her. She's the named individual, and we’ll call it "victim" for the sake of where we are right now. Ms. Saunders is the victim. Mr. MacPherson: Victim’s fine.

In the [ Criminal Code ] it's a defined term that... The Court: yeah, all right, just... Mr. MacPherson: ...includes the term "alleged". [ 33 ] This is coupled with the Court's references from page 159 line 9 to page 161 line 12 which include: ...it's not going well in terms of conviction... I'm going to keep an open mind for the rest of it... You have an aggressive and annoying partner at a law firm who likes his way [the accused]... And you have a very emotionally unfit, unprepared person who’s...one of three managing partners... I think you [the Crown] have a very steep hill to climb.

I'm not sure you want to spend the rest of the afternoon climbing that hill... I've dealt with you for quite some time now, so I suspect I know where this is going. [ 34 ] The Crown's argument continues: Again, a reasonable and impartial observer might think it strange that a Trial Judge would repeatedly assert that he planned to keep an open mind for the rest of the evidence while simultaneously suggesting that the Crown ought to reconsider whether it would be worthwhile to even present the rest of the evidence, given his assessment of the testimony and emotional character of the first witness [the Complainant].

How could anyone (other than the accused) have confidence in this Trial Judge's ability to meaningfully consider additional evidence, or to reconsider the Complainant's evidence? ( Appellant's brief, pp. 8 – 9 ) [ 35 ] The Appellant continues by referencing the passage of the transcript where the Trial Judge is asserting that he had repeated three times that he would keep an open mind.

Crown counsel responded that it was “little comfort” to the person who hears where the decision is headed”, and that “…now Your Honour has sort of committed yourself to a position”, and also, that he was subsequently accused of “making total falsehoods” by the Trial Judge: THE COURT: I have not. I told you that. I said I’ve not made a decision. I did not commit myself to … I was very clear … MR. MACPHERSON: Well, the position is … THE COURT: No, I did not make a decision. MR. MACPHERSON: I didn’t say you made a decision, I said … THE COURT: Commit myself to decision, make a decision-semantics. MR.

MACPHERSON: Your Honour, you’re going to allow me to speak?

THE COURT: Well, I’m gonna keep, start cutting your off if you keep making total falsehoods, but go on. MR. MACPHERSON: Okay, you’ll let me finish my sentence?

THE COURT: Depending what you say, most likely, yes. ( Transcript, p. 181, l. 18 to p. 182, l. 10 ) [ 36 ] Crown counsel contends that these, together with the other earlier cited portions of the transcript, demonstrate actual bias on the part of the Trial Judge, because they show that he had already made up his mind, after hearing only one witness. [ 37 ] As I consider the whole thrust and tenor of the Appellant’s (Crown) case, I begin with the rather unusual nature of the comments directed by the Trial Judge to Ms. Saunders (the Complainant) as she left the stand.

It is unusual for the Court to speak negatively of a witness’ failure to use the accused’s first name when he is referenced within the course of a proceeding. If anything, in most cases, the Court would encourage use of expressions like “Mr. Fraser” or “the accused” rather than “Donn”. With that said, there were times when she did refer to the accused as “Donn” during the course of her testimony. She did not attract censure or judicial comment for those usages. [ 38 ] Perhaps the Trial Judge detected something in her tone or demeanor when she used the expression “the accused”.

I cannot know whether or not he felt that the way she said the words appeared as though she was using them pejoratively. [ 39 ] It is also fair to observe that his further remarks to counsel about the Complainant being “unprepared”, “emotionally unfit”, and the like, were followed by negative comments about the accused that have been referenced earlier. [ 40 ] All of this was a prelude to his direction to Crown counsel that he might want to reconsider his case, decide over the lunch break whether he was going to call his remaining witnesses and continue with his case, and that it was not looking good for a conviction. [ 41 ] In fact, as we have seen, after saying “…I have no idea of where this is going but it’s not going well in terms of conviction”, the Trial Judge added: I think you have a very steep hill to climb.

I’m not so sure you want to spend the rest of the afternoon climbing that hill. ( Transcript, p. 159 ) [ 42 ] Despite this earlier exchange, when the recusal motion was made in the afternoon by the Crown (as we have seen) this was said: Mr. MacPherson: [You said] that I had a steep hill to climb, and something about spending the afternoon climbing that hill … The Court: I said that you have a steep hill to climb … and here’s the afternoon that you’re gonna have to climb that hill that I said you have to climb … Mr.

MacPherson: … I thought you might have made a comment about not wanting to spend the afternoon … The Court: No. I said you have a steep hill to climb, and you’re going to spend the afternoon doing it . [Emphasis added] [ 43 ] Obviously, Crown counsel was correct in his recollection of what was said on this point. The Trial Judge was not. [ 44 ] I consider once again the six elements which the Crown needed to establish, beyond a reasonable doubt, to obtain a conviction under s. 264 . As has earlier been observed, these elements included three factors which are specific to the Complainant herself: 1. that Mr.

Fraser’s conduct had harassed Ms. Saunders; 2. that the conduct had caused her to fear for her safety; and 3. that the fear was reasonable in the circumstances. [ 45 ] Is it indicative of bias, after having heard the Complainant, to let the Crown know that its case is not going well? If one leaves aside the manner in which the Trial Judge brought his concerns to the attention of the Crown, I conclude it was not. He was required to assess the effect of what he had just heard. Two of the criteria for conviction required him to be satisfied of the effect of the accused’s conduct upon Ms.

Saunders including that she was fearful. Another required that her fear be objectively reasonable. [ 46 ] The Trial Judge described what he did in the subsequent discussions with counsel, after Ms. Saunders had left the stand, as “case management”. He also mentions that he will keep an open mind for the duration of the Crown’s case. This coupled with the remarks that he made as she left the stand, does not mean that he did not have an open mind when he heard and evaluated Ms. Saunders’ evidence, and that of the remaining witnesses.

Clearly, he was not favourably impressed with her, after having heard what she had to say. This does not equate, in my view, to the proposition that he went into the hearing biased against either her or the Crown. [ 47 ] With that said, the Trial Judge not only told the Crown that it had a very steep hill to climb, but opined “I’m not sure you want to spend the rest of the afternoon climbing that hill”. [ 48 ] This was a very unfortunate choice of words. I will consider them, as these reasons progress, cumulatively along with the Appellant’s other concerns.

[ 49 ] So I return to those which arose while counsel was questioning the Complainant. It began when Crown counsel started asking the Complainant about how the accused treated other partners at the law firm in general. When challenged by the Trial Judge on the relevance of the accused’s general conduct, Crown counsel and the Trial Judge entered into a discussion with respect to the case law, which culminated in the following exchange: MR.

MACPHERSON: Well, that’s one of the places I’m headed, but let’s go there: In order to establish the elements of the offence set out above, the Crown sought to tender evidence of six prior incidents wherein the respondent resorted to discredible [sic] behave-, discreditable behaviour that involved harassing or threatening conduct. THE COURT: No, the complainant-bit [sic “big”] difference. MR. MACPHERSON: Harassing or threatening the complainant. THE COURT: Now you’re referring to conduct versus the complainant. MR. MACPHERSON: I misread. THE COURT: Yeah, but that, but that’s the point I’m trying to make.

I think that’s what Mr. MacDonald was getting worried about too. You’re starting to go about just his general conduct versus towards her. You’re asking if general conduct verses conduct towards her. MR. MACPHERSON: No, I’m not. Your Honour, Criminal Code 6264… THE COURT: I’m well aware of it; I wrote it down here. I know what all the requirements are for the, the hearing today. So, what was the question you asked? Go back to the question you just asked. You started going about his behaviour at other times . MR. MACPHERSON: Yeah. THE COURT: In general. MR.

MACDONALD: You said: What did you notice about how you treated other partners? That was the question. MR. MACPHERSON: Right. THE COURT: Yeah. MR. MACPHERSON: Partners in general is what I asked. Partners in general. So, that would include who … THE COURT: I didn’t take it to mean her. I thought you meant other partners. MR. MACPHERSON: The, it includes her, but it includes other partners . THE COURT: Well, didn’t sound that way the way you asked your question, so … Keep going . MR.

MACPHERSON: I’m sorry, I didn’t know if I’ve addressed your concern, because I, I wanted to refer to this case to, to show why prior behaviour is absolutely relevant. THE COURT: I understand that, so let’s move on, okay ? MR. MACPHERSON: Okay. THE COURT: But what I’m saying is you’re saying just general conduct … MR. MACPHERSON: Yes. THE COURT: …it starts to get – you’re starting to stray , as opposed to the case you’re referring to talks about there. MR. MACPHERSON: Yeah. I absolutely disagree … THE COURT: All right. MR. MACPHERSON: … with the court . The, the … THE COURT: Keep going . MR.

MACPHERSON: … general conduct is absolutely relevant – if she knows about it. THE COURT: Yeah. All right, keep going . MR. MACPHERSON: ‘Cause we have to know not just what was in her mind, but what was in his mind , or should have been in his mind, by virtue of the wording of the charge. So, I ask the question again: What, if anything, did you notice about the accused’s conduct, in general, with other partners? (Transcript, p. 68, l. 3 to p. 70, l. 20)

[Emphasis added] [50] If, at times, the Trial Judge was brusque and outspoken, it is equally fair to observe that, in exchanges like the above, Crowncounsel was unusually tenacious, and refused to cease some discussions even after the Judge was prepared to allow him to ask thequestion.

Moreover, this often occurred after the Judge had repeatedly asked him to “proceed” and/or “keep going”. [51] As to the Crown’s desire to define what “victim” meant, as the Respondent’s counsel notes in his brief: The Appellant complains that the trial judge interjected before the Crown could define the term “victim” and states that “any reasonableobserver would conclude that the judge did not want to hear what the Crown was saying”. The Appellant ignores the fact that he was theone who interrupted the trial judge to offer a superfluous comment about the definition of “victim”.

The judge did not need to requestassistance from the Crown on the definition of “victim”. The Crown’s interruption was beside the point. (Respondent brief, para. 35) Some Case Law [52] In Bizon v. Bizon, 2014 ABCA 174, Wakeling, J.A., said the following: 46. The duty to be polite and courteous does not in any way fetter a judge's related obligation to insist that those who make submissionsto the court, whether counsel or a person on his own behalf, focus on relevant considerations and conduct themselves in an appropriatemanner.

Sometimes the misconduct of counsel or a litigant compels a judge to issue firm directions. A judge forced into this mode doesnot violate any norm which governs her behaviour. Canadian Judicial Council, Ethical Principles for Judges 20 (2004) ("The obligationto be patient and treat all before the court with courtesy does not relieve the judge of the equally important duty to be decisive and promptin the disposition of judicial business"); Marchand v.

Public General Hospital Society of Chatham, (ON CA), 138O.A.C. 201, 243 (C.A. 2000) (a trial judge may have to deliver the "occasional mild rebuke" to counsel to maintain control") & Liteky v.United States, 510 U.S. 540, 556 (1994) ("A judge's ordinary efforts at courtroom administration -- even a stern and short-temperedjudge's ordinary efforts at courtroom administration -- remain immune"). This function reflects the fact that judicial business must beconducted efficiently. Litigants, counsel and others who need the attention of the court expect nothing less.

Judicial resources arevaluable and must not be wasted. So are those of the participants. 47. The failure to adhere to this standard does not justify the conclusion that a judge is partial. A judge who is impatient and rude canstill be impartial. … 49. The key issue is whether the judge's conduct justifies the conclusion that she is, in fact, partial or would cause a reasonable, right-minded and informed person to conclude it probable that the adjudicator was not impartial. [Emphasis added] [53] In the earlier case of R. v.

G.(A.), (1998), (ON CA), 130 CCC (3d) 30 (ONCA), the Trial Judge had referredto Defence counsel as “dumb”, and compared him to “Bonzo the Chimp”, during the case. The Ontario Court of Appeal acknowledgedthat these comments were discourteous, and could not be justified, but went on to state that there had been no “indication that the TrialJudge’s view on this issue carried over in his assessment of the Appellant or the position of the Defence” (para. 50).

Further the Courtnoted that the comments “did not support the contention that the trial was unfair or appeared to be unfair” (para. 54). [54] On the other hand, in B. (J.B.) v. B. (J.A.)(1992), (NS CA), 113 N.S.R. (2d) 60 (CA), during a custodyhearing between temporary guardians and the natural mother of the child, the Trial Judge had called counsel into his chambers after thedirect examination of the natural mother, prior to cross-examination, and indicated to counsel that the hearing was a waste of time andthat custody should be granted to the natural mother.

Counsel for the temporary guardian put the comments on the record and asked theTrial Judge to withdraw. When he refused and awarded custody of the child to the natural mother, the guardian appealed. The Court ofAppeal, in the course of rendering its decision, explained: 14. The general law to which I have referred has been followed and applied in judgments of this Court. Recent examples include R. v.R.T.J.T. (1989), (NS CA), 93 N.S.R. (2d) 101; MacIntyre v. MacDonald, S.C.A. 02232, June 13, 1990; R. v.Colley (1991), 1991 NSCA 1 , 105 N.S.R. (2d) 178 and R. v. MacLean (1991), (NS CA), 106 N.S.R. (2d)213. 15.

In R.T.J.T. a complete and running file concerning the record and other matters of an accused youth had been placed on the judge'sbench before the judge heard an application affecting the youth. While there was no allegation of actual bias, the issue was whether thejudge's access to the file created a reasonable apprehension. In allowing the appeal, Matthews J.A. said at p. 102: "The principle applicable in this case is that expressed in The King v.

Sussex Justices; ex parte McCarthy, [1924] 1 K.B. 256, at p. 259: '... a long line of cases shows that it is not merely of some importance but is of fundamental importance that justice should not only bedone, but should manifestly and undoubtedly be seen to be done. ...'" 16. In MacIntyre, a judge took a view of property which was a subject of the proceeding before him without notice to the appellant orhis counsel. Chipman J.A. stated: "... In the course of his so doing, there were inevitably some communications between the judge and the respondent.

While there is nosuggestion that any injustice in fact resulted, the perception that arises is such that in our view there should be a new trial."

17. In Colley the judge refused counsel of the accused the right to make submissions before his client was committed for trial on severalcounts of fraud. A justice of the Trial Division quashed the order of committal and remitted the matter to the same judge for rehearing.This court confirmed the order quashing the committal and, in addition, directed that it should not be returned to the same judge whofirst heard it. Freeman J.A. said at p. 180: "A reasonable person might arrive at that conclusion.

While the words of [the judge] might be innocuous in another context, following asthey did the denial of the right of counsel to address the court, they raise a reasonable apprehension that his mind was made up. In thosecircumstances, any decision [the judge] might come to after hearing the submission of counsel would be tainted by the suspicion. We are satisfied the appellant has met the evidentiary burden for setting aside decisions in like circumstances as discussed in de Smith,Judicial Review of Administrative Action (4th Ed. 1980), Stevens & Sons Ltd. London, pp. 262-268." 18. In R. v.

MacLean, the trial judge, before hearing submissions of counsel, indicated that he had already written his decision andconsidered the arguments had already been "summed up". For this court, Chipman J.A. said at pp. 214-215: "In our opinion, it is incumbent upon a trial judge to give a party appearing before him an opportunity to present argument beforemaking a decision on any issue. In particular, a party must be allowed to make submissions at the close of the evidence. See R. v.Aucoin, (SCC), [1979] 1 S.C.R. 554.

In the context of a criminal case, these rights are among those guaranteed to anaccused as a component of fundamental justice under s. 7 of the Charter, and more particularly by s. 11(

d) thereof, and by s. 802(1) ofthe Criminal Code. The trial judge did not expressly deny either the Crown or the respondent the opportunity to present further argument. Indeed, it is clearfrom reading the portion quoted above that although he told counsel that he had already written his decision, such argument was notprecluded. In reality however, reasonable counsel could conclude in the face of such a statement that any such argument could be a mereformality, could carry little or no weight with the judge and indeed might involve the risk of irritating the court.

In our view, whateverway the judge had already written his decision, the appearance of injustice to the losing party was there. The respondent was effectivelydenied his right to make a meaningful closing submission. … [55] The court continued: 19. Since 1982 the Canadian Charter of Rights and Freedoms has entrenched in the Constitution of Canada by s. 11(

d) the provisionthat a person charged with an offence has the right to be presumed innocent until proven guilty according to law in a fair and publichearing by an independent and impartial tribunal. In the conduct and carriage of civil actions the law of Canada requires the samestandard - a fair and impartial hearing. 20. The test is objective: what a reasonable person would think in the circumstances. Here it would be that the judge had made hisdecision before all the evidence from all the parties was heard.

Conversations between the presiding judge and counsel in the judge'schambers during the course of a trial relating to the issues at trial are neither protected by immunity nor exempt from the properapplication of the law. 21. For the reasons given I would allow the appeal, set aside the decision of the judge of the Family Court and any order based thereon,and, finally, I would remit the matter to the Family Court for a new trial. There will be no costs to any party. [56] In R. v. L.W.F., [2006] O.J.

No. 1200, the Trial Judge, in a sexual assault case was asked to recuse himself from sitting as theTrial Judge and declare a mistrial, on grounds that he had created a reasonable apprehension of bias by the remarks he had earlier madeduring the cross-examination of the victim's older sister. I have reproduced the impugned remarks below: THE COURT: There is obviously some serious difficulties arising with the credibility of this witness, a whole range of areas where she'scontradicting herself, she's contradicting other evidence before us.

Are we going to carry the thing on through is my question I guess?Past discreditable conduct applications are difficult enough for the Crown without a witness who is having the difficulties this one is.You know, I perhaps shouldn't speak this frankly this early, because you haven't had an opportunity to rehabilitate her. But there's anuphill battle coming there, if that's what you're hoping to do. MS LYNCH: I certainly appreciate Your Honour's comments. I took some time to consider this issue overnight. I wonder if I may haveperhaps a few minutes indulgence?

THE COURT: In fact, we'll come back at 11 o'clock, 20 minutes. THE COURT: Yes. MS LYNCH: Thank you, Your Honour, for that indulgence. I certainly appreciate Your Honour's comments from the bench and Icertainly ... THE COURT: Yes. MS. LYNCH: ... on all parties pursuing applications to assess the merits of the applications. Having considered the evidence that hasbeen called on the application, and applying the principles and the legal precedents set out in all of the relevant materials before YourHonour, at this point in time the Crown is seeking to abandon the similar fact application before Your Honour.

THE COURT: Okay, thank you. I shouldn't comment too much, but I certainly think that is the appropriate thing to have done in thesecircumstances. The difficulties that were arising with regard to this witness' testimony were leading me to the conclusion that I wouldhave difficulty accepting pretty well anything that she said, and particularly the crucial evidence about having been abused by her father.

There just wasn't sufficient credibility, either through forgetfulness on her part or perhaps it's deliberate, I don't know. It's been severalyears ago and it's hard to remember sometimes phone calls that are made, and briefly made. In any event, thank you for that. That iscertainly in my view the appropriate thing to have done at this stage. Anyone else any comments? [Emphasis added] [57] In declining to recuse himself, O'Connor, J. stated : 28. In the case at bar, my comments do not indicate that I had prejudged the credibility of the witness.

Nor would a reasonable personwho is reasonably informed, and possessing knowledge of the relevant circumstances of the case, have a reasonable apprehension that Iwas biased against the witness. See Cory J's remarks in R.D.S. at para. 111. I had not reached a conclusion as to the credibility of thewitness. I had concerns about "... some serious difficulties arising ..." with her credibility. Any reasonably informed person, possessingknowledge of the relevant circumstances of the case, would likely have made the same observation, upon hearing the contradictions andinconsistencies in her testimony.

In fact, the Crown attorney's comment that she "... took some time to consider this issue overnight",followed by a recess and then her abandonment of the motion, would indicate she was also harbouring "difficulties" with the testimony.As in Currie, the crown was not bound to agree with my characterization of the credibility of the witness, And, as in Currie, she askedfor and took a recess to consider her position. She was not required to take the step she did - abandonment of the motion.

She could haveasked that the cross-examination continue and then follow it with a re-examination designed to rehabilitate the witness. 29. The cases are clear that a trial judge's interventions must be considered in the context of the entire trial. In this case, the cross-examination had exposed significant conflicts in the witness' testimony. The intervention was to express a reservation about an obviouscredibility problem with the witness, but with the acknowledgement that the crown had not had an opportunity to rehabilitate her. 30.

Trial judges have a responsibility to manage trials, keep them moving, to ensure they proceed in an efficient manner. While it mayhave been preferable that I not have intervened so directly, the intervention served to bring to a head an issue that the crown was alsoconsidering. It served to promote the disposition of the application and expedite the proceedings. 31. Mr. Justice Michael Moldaver of the Ontario Court of Appeal recently addressed The Criminal Lawyers' Association respecting thedifficulties our judicial system is encountering because of the proliferation of longer and longer trials.

He was not speaking of "the AirIndias or Hells Angels" trials, but of "... your standard, ordinary, everyday murder trials, sexual assault trials, robbery trials, drug trialsand the like." He laid responsibility for the situation at several doorsteps, including that of the judiciary. He said, "The judiciary, Ibelieve, is also responsible at times for not putting a quick end to motions that are frivolous and vexatious; for allowing motions that area little more than fishing expeditions to go on endlessly ...". 32.

Of course, when the crown brought the discreditable conduct motion, she could not know how the witness might fare on cross-examination. The CAS records, which provided much of the ammunition used by the defence on cross, had not been released to counsel.Obviously, her motion was not frivolous or vexatious. But, as I pointed out, it became an "up-hill battle" for her to succeed. In thecircumstances of this case, adopting and implementing Justice Moldaver's comments about shortening motions that appeared doomed tofailure seemed appropriate. [Emphasis added] [58] In R. v.

Hargreaves (1982), (ON CA), 69 CCC (2d) 380 (Ont. CA), the Court ordered a new trial in asituation where the Trial Judge had indicated during a Defence motion for a directed verdict that she was in a state of reasonable doubtabout the guilt of the accused. When the Defence then withdrew the motion, she acquitted the accused. The Court of Appeal found thather premature finding of reasonable doubt vitiated the subsequent proceedings. Application to Case at Bar [59] I have considered the transcript of the trial holistically. I have considered the written decision in its entirety.

At the risk ofunderstatement, it is quite clear to me that neither the Trial Judge or Crown counsel was having his “best” day on April 5, 2022.Certainly, the Trial Judge could and should have worded his interventions or remarks to Crown counsel more diplomatically. Some heshould have avoided all together. I make some of the same observations vis a vis Crown counsel. In particular, perhaps Crown counselcould have avoided what appeared, at times, to be a “tit for tat” with the Trial Judge. [60] When the dust settles, however, the fact remains that there is a very strong presumption of judicial impartiality.

If we leaveaside the manner in which he imparted his views to counsel for the Appellant, we are left with a Trial Judge hearing a Complainanttestify, (apparently) recognizing that two of the constituent elements of the offence (which must be proven beyond a reasonable doubt)are dependent upon the effect of the accused’s conduct upon her, and a third upon whether her fear was objectively reasonable in thecircumstances, then pointing out to the Crown counsel that, as a consequence, he should know that he is facing an uphill climb.

At thesame time, the Trial Judge said (many times) that he had not prejudged the case, and that he would listen to what the rest of the Crown’switnesses had to say. And he did. Obviously, what they had to say would also be relevant to the subjective effect that the accused’sconduct had upon her, and the objective reasonableness of her fear.

I have not been persuaded that the Trial Judge demonstrated actualbias. [61] Similarly, and after giving the matter a considerable amount of thought, I am not persuaded that a reasonable, informed person,possessing knowledge of the relevant circumstances of the case, viewing the matter realistically and practically, would conclude that it isprobable that the Trial Judge was biased. Unlike the situation in B.(J.B.), this remark did not amount to an assertion that the proceedingwas a waste of time or a declaration that one side should win after hearing only the direct examination of the “winning party”.

Nor did heannounce, before closing submissions had been made, that he had already made his decision, as occurred in R. v. MacLean. [62] Rather, the same person would see that he made caustic comments to (and about) the Complainant, to and about, Crowncounsel, and about the accused, without even hearing the latter testify. The Trial Judge was even-handed in what he doled out, even ifone might question the wisdom, or at least the utility, of saying some of the things that he said, or the manner in which he said them. So,

to repeat, I have not been persuaded that a reasonable apprehension of bias has been established either. [ 63 ] If nothing else, the Trial Judge brought his concerns to the attention of Crown counsel (albeit very confrontationally). He indicated to Crown counsel that he had an uphill battle, one which he should consider over the lunch break, and repeatedly stressed that he would keep an open mind in relation to, as he heard the remainder of the evidence.

I am not persuaded that the rider “I’m not so sure you want to spend the rest of the afternoon climbing that hill” and other conduct referenced by the Appellant would have vitiated the effect of the Trial Judge’s repeated indications that he would keep an open mind with respect to the rest of the Crown’s case and/or created an impression in the view of the hypothetical “reasonable person” that it was more likely than not that the Judge was incapable of deciding the matter fairly due to conscious or unconscious bias. [ 64 ] But I have been persuaded of something else.

Sadly, I have concluded that the same “reasonable, informed person”, referenced above – even if that person would not have concluded that it was probable that the Trial Judge was biased, would nonetheless walk away with their respect for the justice system shaken. They would, after all, have seen a Judge and Senior Crown Prosecutor, who, in the words of the former, tend to “bump heads a lot”, going at it “toe to toe” for much of April 5, 2022.

They would have seen that Judge refer to the Prosecutor as a liar (“making total falsehoods” – p. 182). [ 65 ] That same person would have seen the Judge chastising the first witness that he hears (for the prosecution) because she referred to Mr. Fraser as “the accused”, rather than by his first name, would have seen the Judge saying that she was “emotionally unprepared”, and then observed him referring to the accused (from whom he heard nothing at all) using epithets such as “annoying”, “obnoxious”, “overbearing”, and the like.

They would also have seen the apparent “one-upmanship” between the Crown and Trial Judge which consumed a material portion of that first day. And while all of this was going on, the question of the guilt or innocence of the accused appeared to have been relegated to a back seat. [ 66 ] To be blunt, the perception of the public is critical to the efficacy of the justice system. The public, in turn, must have confidence in the Court’s ability to deal with civil, criminal, and other disputes in a rational, civilized manner. The dignity of such a system is undermined at society’s peril.

In my view, repetition of what occurred in this proceeding would contribute to the erosion of public confidence in this institution. Conclusion [ 67 ] The Crown has not discharged its very heavy onus, in the circumstances of this case, to establish actual bias, or a reasonable apprehension of bias, on the part of the Trial Judge. [ 68 ] Therefore, the appeal is dismissed. Gabriel, J.