R v Baldovi et al, 2018 MBCA 64

Citation: R v Baldovi et al, 2018 MBCA 64 Date: 20180607 IN THE COURT OF APPEAL OF MANITOBA Coram: Chief Justice Richard J. Chartier Madam Justice Diana M. Cameron Madam Justice Jennifer A. Pfuetzner Docket: AR17-30-08813 ) K. E. Smith BETWEEN : ) for the Appellants ) Ronald Baldovi, HER MAJESTY THE QUEEN ) Carol Banayos and ) Chandeep Dhaliwal Respondent ) ) - and - ) S. B. Simmonds and ) S. R. Segal RONALD BALDOVI ) for the Appellant ) Jasdeep Singh Warraich (Accused) Appellant ) ) - and - ) E. J. Roitenberg ) for the Appellant Docket: AR17-30-08825 ) Oliver Banayos BETWEEN : ) ) HER MAJESTY THE QUEEN ) S. C.

Cawley and ) J. A. Hyman Respondent ) for the Respondent ) - and - ) ) Appeal heard: JASDEEP SINGH WARRAICH ) January 30, 2018 ) (Accused) Appellant ) ) Judgment delivered: - and - ) June 7, 2018 ) Docket: AR17-30-08846 ) BETWEEN : ) ) HER MAJESTY THE QUEEN ) ) Respondent ) ) - and - ) ) CHANDEEP DHALIWAL ) ) (Accused) Appellant ) ) - and - ) ) Docket: AR17-30-08940 )

BETWEEN : ) ) HER MAJESTY THE QUEEN ) ) Respondent ) ) - and - ) ) CAROL BANAYOS ) ) (Accused) Appellant ) ) - and - ) ) Docket: AR17-30-08952 ) BETWEEN : ) ) HER MAJESTY THE QUEEN ) ) Respondent ) ) - and - ) ) OLIVER BANAYOS ) ) (Accused) Appellant ) On appeal from 2016 MBQB 220 per curiam [ 1 ] This appeal raises an issue that strikes at the heart of public confidence in judges. Such confidence rests on the strong presumption of judicial impartiality and integrity. An allegation that a judge might be biased should not be made lightly.

Introduction [ 2 ] The accused were convicted of offences arising from a 2012 investigation into drug trafficking dubbed “Project Sideshow” by the Winnipeg Police Service (WPS). [ 3 ] This appeal involves a pre-trial ruling made by the motion judge dismissing a motion to quash a series of authorizations to intercept private communications made pursuant to

Part VI of the Criminal Code (the wiretap authorizations) targeting the accused and others. Specifically, the appeal focusses on the motion judge’s ruling dismissing the claim that there existed a reasonable apprehension of bias in respect of the judge who granted the first six wiretap authorizations (the authorizing judge). [ 4 ] The authorizing judge had, prior to his appointment to the bench, worked in the same office as the Crown prosecutor seeking the wiretap authorizations.

As well, in 2009 he had prosecuted Baljinder Singh (Singh), one of the targets of Project Sideshow (the Singh prosecution). [ 5 ] For the reasons that follow, we would not interfere with the motion judge’s conclusion that, after careful review of the circumstances of this case through the lens of a reasonable, informed person, there was no reasonable apprehension of bias . Issues [ 6 ] The accused raise several issues that can be grouped into four categories. [ 7 ] To start, the accused raise legal arguments concerning the proper test to be applied in analysing reasonable apprehension of bias.

First, they argue that the motion judge applied too high a standard as there is a contextual element to the test. Second, they argue that the decision in R v St-Cloud , 2015 SCC 27 has changed the qualities of “the reasonable person” to recognize that such a person does not appreciate as many legal complexities as once thought. Third, they argue that the test for reasonable apprehension of bias should be whether there exists a real possibility, as opposed to a real likelihood, that a reasonable person could conclude that a reasonable apprehension of bias exists.

Fourth, they maintain that the motion judge erred in his re-statement of the test when posing the questions to be answered in this case and that his conclusions reflect the errors that he made in forming the questions. [ 8 ] Next, the accused argue that the motion judge erred in his application of the test to the facts of this case.

First, they argue that the motion judge should have applied the Canadian Judicial Council, Ethical Principles for Judges , online: <www.cjc-ccm.gc.ca/cmslib/general/news_pub_judicialconduct_Principles_en.pdf> (the Ethical Principles ) in his consideration of reasonable apprehension of bias. Second, they contend that he erred by considering whether the authorizing judge recalled the Singh prosecution and by taking into account the fact that the authorizing judge had no knowledge of Project Sideshow.

[9] The accused raise concerns about the nature of the process engaged in to obtain the wiretap authorizations and theresultant lack of reasons. First, the accused submit that the motion judge failed give proper weight to the ex parte nature of theauthorizing judge’s decision.

Second, they assert that the motion judge erred in how he reviewed the authorizing judge’s decision toissue the wiretap authorizations in light of the fact that the authorizing judge did not give reasons. [10] In addition to the above, the accused say that the motion judge erred by failing to consider the cumulative effect of all ofthe factors in this case giving rise to a reasonable apprehension of bias. Standard of Review [11] Pure questions of law are reviewed on a standard of correctness.

In the criminal law context, the application of a legaltest to the facts is a question of law and is reviewed on correctness (R v Shepherd, 2009 SCC 35 at para 20). In this case, the applicationof the legal test to the facts entailed the motion judge performing a judicial bias analysis. Such an analysis is highly fact-driven and isdeserving of deference. However, appellate courts do retain some scope for review because such claims raise serious and sensitiveissues. See R v S (RD), (SCC), [1997] 3 SCR 484 at para 102.

Analysis The Legal Test for Reasonable Apprehension of Bias [12] Preserving public confidence in the administration of justice and the rule of law requires that any dispute entrusted to ajudge will be decided fairly and impartially. As was stated by the Supreme Court of Canada in Wewaykum Indian Band v Canada, 2003SCC 45, an impartial judiciary “is the key to our judicial process, and must be presumed” (at para 59).

Indeed, there is a strongpresumption that judges are unbiased and the party alleging bias has the onus of establishing that the circumstances justify a finding thatthe judge must be disqualified. [13] Actual bias is not alleged in this case. Rather, the allegation relates to a reasonable apprehension of bias. While the testfor a reasonable apprehension of bias was initially stated in dissenting reasons, it is now well-settled.

It was recently restated by theSupreme Court of Canada in Yukon Francophone School Board, Education Area #23 v Yukon (Attorney General), 2015 SCC 25 (at paras20-21): The test for a reasonable apprehension of bias is undisputed and was first articulated by this Court as follows: . . . what would an informed person, viewing the matter realistically and practically — and having thought the matter through —conclude. Would he think that it is more likely than not that (the decision-maker), whether consciously or unconsciously, would notdecide fairly. (Citation omitted.) (Committee for Justice and Liberty v.

National Energy Board, (SCC), [1978] 1 S.C.R. 369, at p. 394, per de Grandpré J.(dissenting)) This test — what would a reasonable, informed person think — has consistently been endorsed and clarified by this Court: e.g.,Wewaykum Indian Band v. Canada, 2003 SCC 45 , [2003] 2 S.C.R. 259, at para. 60; C.U.P.E. v. Ontario (Minister of Labour),2003 SCC 29 , [2003] 1 S.C.R. 539, at para. 199; Miglin v. Miglin, 2003 SCC 24 , [2003] 1 S.C.R. 303, at para. 26;Baker v. Canada (Minister of Citizenship and Immigration), (SCC), [1999] 2 S.C.R. 817, at para. 46; R. v.

S. (R.D.), (SCC), [1997] 3 S.C.R. 484, at para. 11, per Major J., at para. 31, per L’Heureux-Dubé and McLachlin JJ., at para. 111,per Cory J.; Ruffo v. Conseil de la magistrature, (SCC), [1995] 4 S.C.R. 267, at para. 45; R. v. Lippé, (SCC), [1991] 2 S.C.R. 114, at p. 143; Valente v. The Queen, (SCC), [1985] 2 S.C.R. 673, at p. 684. [14] The test as to whether a judge should be disqualified because of a reasonable apprehension of bias will be consideredfrom the objective perspective of what a “reasonable, informed person” would think (Yukon at para 21; see also Wewaykum at para 67).

A two-fold objective element is built into the test for a reasonable apprehension of bias. As was explained by Cory J in S (RD) at para111, this element requires, first, that the person considering the alleged bias be reasonable and, second, that the apprehension of bias bereasonable in the circumstances of the case. [15] Cory J also explained that since the allegation brings into question one of the pillars of justice—the integrity andimpartiality of the judiciary—a high threshold is warranted. He states (at para 113): [T]he threshold for a finding of real or perceived bias is high.

It is a finding that must be carefully considered since it calls into questionan element of judicial integrity. Indeed an allegation of reasonable apprehension of bias calls into question not simply the personal

integrity of the judge, but the integrity of the entire administration of justice. [16] We will now address the legal arguments made by the accused. Whether the Test Varies Depending on the Context [17] The accused argue that the motion judge in this case applied too high of a standard on the question of whether theauthorizing judge should have disqualified himself. They state that the standard for disqualification or “the level of tolerated perceivedimpartiality” varies with the role and function of each decision-maker.

As authority for this proposition, the accused rely onNewfoundland Telephone Co v Newfoundland (Board of Commissioners of Public Utilities), (SCC), [1992] 1 SCR 623. [18] In Newfoundland, the Supreme Court of Canada held that, given the great diversity in administrative bodies, thethreshold for a finding of bias varies.

It stated that those administrative bodies that are primarily adjudicative in their functions will beexpected to comply with the same high threshold applicable to courts, while those bodies with “popularly elected members such as thosedealing with planning and development” will be held to a lower threshold (at p 638). [19] There is no merit to the argument that the threshold for a finding of judicial bias should vary as it does for anadministrative body. The parallel the accused are asking us to draw cannot be made.

Unlike administrative bodies, where variouscontextual factors may bring about varying or shifting thresholds, there is but one high standard for a finding of judicial bias. The basisfor the single standard lies upon the strong presumption of judicial integrity and impartiality (see Wewaykum at para 76). In turn, thethreshold to rebut this strong presumption always remains high and never varies.

Whether St-Cloud Changes the Qualities of the Reasonable Person [20] The accused submit that St-Cloud changed the characteristics of the “reasonable, informed person” described in the firstcomponent of the two-fold objective element: that the person considering the alleged bias be reasonable and informed.

They argue thatthe “reasonable, informed person” does not appreciate as many legal complexities as once thought and that, as a result, he or she wouldnot be aware of the firmly established traditions of integrity and impartiality that judges are sworn to defend and uphold. [21] To make their point, the accused rely on a few passages in St-Cloud: that the well-informed member of the public“cannot be expected to have the same level of legal knowledge as judges or lawyers” (at para 77) and “is not a legal expert familiar withall the basic principles of the criminal justice system” (at para 80). [22] We do not accept that St-Cloud modified the traits and qualities of the “reasonable, informed person” considering anallegation of bias.

In our view, the submission of the accused is premised on a false analogy. Courts use the “reasonable person”standard to import an objective criterion into an analysis. That standard is used in many circumstances for a variety of purposes. TheSupreme Court of Canada’s analysis in St-Cloud was not in regard to the “reasonable, informed person” considering a bias allegation. Rather, it was a bail application analysis with respect to the word “public” used in section 515(10) of the Criminal Code.

Simply put, thedegree of similarity, with respect to the analogy the accused are trying to make, is weak. [23] We find support for our conclusion in the fact that the Supreme Court of Canada had previously explained that theperson considering the allegation of bias would have knowledge of all of the relevant circumstances, including relevant traditions ofintegrity and impartiality (see S (RD) at paras 48, 111).

The Supreme Court of Canada in St-Cloud would not have changed the lawrespecting reasonable apprehension of bias without expressly dealing with what it had earlier stated in S (RD). [24] However, assuming without accepting that a proper analogy could be made between the two (how a “reasonablemember of the public” (St-Cloud at para 79) views a bail application and how a “reasonable, informed person” views a bias allegation),St-Cloud does emphasize that such persons would be knowledgeable of Charter rights (see the Canadian Charter of Rights andFreedoms (the Charter)) and informed of the foundational values from which they are drawn (at para 79): Thus, a reasonable member of the public is familiar with the basics of the rule of law in our country and with the fundamental values ofour criminal law, including those that are protected by the Charter.

Such a person is undoubtedly aware of the importance of thepresumption of innocence and the right to liberty in our society and knows that these are fundamental rights guaranteed by ourConstitution. [25] Since the right to be tried by an independent and impartial tribunal is protected by

section 11(

d) of the Charter, the“reasonable, informed person” considering a bias allegation would be knowledgeable of “the traditions of integrity and impartiality onwhich the system of justice is based” (Children’s Aid Society of the Regional Municipality of Waterloo v (CT), 2017 ONCA 931 at para86) and “cognizant of the fact that impartiality is one of the duties judges swear to uphold” (R v Richards, 2017 ONCA 424 at para 49).

This conclusion is also supported by the fact that the threshold to meet the test for bias needs to be high because, as was mentionedearlier, an allegation of bias calls into question the integrity of both the judge and the entire justice system. [26] In our view, and contrary to the submission of the accused, the analysis of the two-fold objective element is to beconducted through the lens of a reasonable, informed person who would be aware of the firmly established traditions of integrity and

impartiality that judges are sworn to defend and uphold. Appellate intervention is unwarranted on this ground. Whether the Motion Judge Should Have Applied a Lower Standard [ 27 ] The accused argue that, when considering the question of whether it was “more likely than not” that a reasonable person would think that the authorizing judge would not decide the wiretap applications fairly, the motion judge should have been guided by the lower standard advanced by Lambert JA, concurring in R v Wolfe , 2005 BCCA 307 .

Lambert JA stated that, in his opinion, the test should be (at para 44): Is there a real possibility that a reasonable person, properly informed and viewing the circumstances realistically and practically, could conclude that the decision-maker might well be prone to bias? [emphasis added] [ 28 ] We would summarily dismiss this argument. That reasoning was never followed by any other court or even the British Columbia Court of Appeal which, since Wolfe , has repeatedly applied the “more likely than not” test in cases involving reasonable apprehension of bias.

Moreover, the Supreme Court of Canada decided Yukon in 2015. If it had wanted to vary the test for reasonable apprehension of bias in accordance with Lambert JA’s reasoning in the 2005 Wolfe case, it could have done so in Yukon .

Whether the Motion Judge Misstated the Test for Reasonable Apprehension of Bias [ 29 ] The accused argue that the motion judge erred in his application of the test for reasonable apprehension of bias by misstating the question to be posed and then answering that question. [ 30 ] After reviewing the law regarding the test to be applied and the facts as he found them, the motion judge stated that, in his view, the two salient questions were (at para 112): (

a) What would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude? (

b) Would this person think that it is more likely than not that [the authorizing judge], whether consciously or unconsciously, did not and could not decide fairly? [emphasis added] [ 31 ] The argument of the accused is that the motion judge erred in two ways when he considered the second question. That is, he erred in asking whether the authorizing judge:

i) did not; and ii) could not decide the matter fairly. They underscore that the question should have been whether the reasonable person would conclude that the motion judge would not decide the matter fairly. Use of the Words “did not” [ 32 ] Regarding his use of the words “did not”, the accused contend that, by formulating the test in such a manner, the motion judge erroneously introduced the “actual decision-making capabilities of the [authorizing] judge and the result of his determination into the inquiry” in a situation where actual bias is not alleged.

That is, they argue that the motion judge’s re-statement of the test sets too high a standard because the test can only be met if actual bias is proven. [ 33 ] However, in Wewaykum , after stating the law regarding apprehension of bias, the Supreme Court of Canada framed the question as it applied to the facts of that case as (at para 74): Would [the reasonable] person think that it is more likely than not that Binnie J., whether consciously or unconsciously, did not decide fairly? [emphasis added]

[ 34 ] That is exactly the same way that the motion judge framed the part of the question that the accused take issue with in this case. We reject the accused’s argument that the motion judge erred when he stated the question to be whether the authorizing judge “did not” fairly decide the matter. Use of the Words “could not” Instead of “would not” [ 35 ] The accused argue that the motion judge wrongly stated the question to be whether the reasonable person would think that the authorizing judge “could not”, as opposed to “would not”, be able to decide fairly.

They submit that the use of the term “could not” constitutes a higher test than “would not”. They state that, under the “would not” standard, the reasonable person must consider whether there existed a real likelihood or probability of bias. Conversely, they contend that the “could not” standard requires the reasonable person to consider whether the judge was incapable of rendering a fair ruling. They maintain that the “could not” standard considers the question of actual bias as opposed to apprehended bias.

In their view, the conclusion of the motion judge regarding reasonable apprehension of bias supports their contention that he posed and answered the wrong question. [ 36 ] In his final conclusion regarding bias, the motion judge, after considering the facts of this case, stated (at para 113): [N]othing in those limited connections would give the reasonable person, fully informed of the facts and the judicial obligation to neutrality, sufficient reason to be concerned that [the authorizing judge] would be unable to judge the

Part VI applications fairly. [emphasis added] [ 37 ] The motion judge further concluded (at para 114): For the reasons already discussed, I have concluded that no reasonable person with knowledge of the presumption of impartiality, the significance of the judicial oath, and all of the facts . . . would or could conclude that [the authorizing judge]’s judicial role as the issuing judge in the [wiretap] authorizations created a reasonable apprehension of bias.

It is also my determination that no reasonably informed person would think that it is more likely than not that [the authorizing judge], whether consciously or unconsciously, did not or could not decide the matter fairly. [emphasis added] [ 38 ] We agree with the Crown that a review of the totality of the reasons of the motion judge show that he used the words “could” and “would” interchangeably. [ 39 ] We also note that there are other decisions wherein the word “could” as opposed to “would” has been used in applying the test for reasonable apprehension of bias.

For example, in R v Alpha Manufacturing Inc , 2009 BCCA 443 , the British Columbia Court of Appeal considered an application for leave to appeal a

summary conviction on the basis of actual or unreasonable apprehension of bias. In rejecting the application, Frankel JA, writing for the Court, stated (at para 21): [T]here is no merit to the applicants’ contention that an informed, reasonable, and right-minded person, would conclude that Judge Miller could not fairly try this case. [emphasis added] [ 40 ] At the end of the day, throughout his reasons, the motion judge frequently stated the test for apprehension of bias by replicating the wording from Yukon .

In his application of the test to the facts of the case, he framed the question slightly differently, but in the same manner as was done in Wewaykum and Alpha Manufacturing . He considered the relevant contextual and factual background as required by Wewaykum in reaching his conclusion that the high test for apprehension of bias was not met. The accused have not convinced us that he erred in this regard.

Whether the Facts Satisfy the Test for Reasonable Apprehension of Bias [ 41 ] Having addressed the accused’s arguments regarding the proper formulation of the test, we consider the application of the test for reasonable apprehension of bias on the facts in this case.

Factual Background [42] There are two primary facts relied on by the accused to support their claim that there was a reasonable apprehension ofbias with respect to the authorizing judge. [43] First is the authorizing judge’s involvement while employed as a Crown prosecutor in the local office of the PublicProsecution Service of Canada (the PPSC) with the Singh prosecution in respect of charges arising out of a 2005 WPS investigation. Singh was also one of the targets of Project Sideshow.

Singh was not before the motion judge as he had already pleaded guilty and beensentenced in respect of charges arising out of Project Sideshow. The only accused before the motion judge with any connection(although a remote one) to the Singh prosecution was the accused Ronald Baldovi (Baldovi), who was also a target of the 2005 WPSinvestigation.

The charges against Baldovi arising from the 2005 investigation were stayed over a year before the authorizing judge wasassigned the Singh prosecution. [44] Second, the accused point to the fact that the authorizing judge was also employed as a Crown prosecutor in the localoffice of the PPSC in 2012 at the time that one of his colleagues (the former colleague) was assigned to be the advisory Crown to theWPS for Project Sideshow.

In 2009, the former colleague was briefly involved in the Singh prosecution, in that she attended one pre-trial conference and edited some information for disclosure. [45] As the advisory Crown for Project Sideshow, the former colleague was the designated agent who made the applicationsfor the wiretap authorizations and filed them in the Court of Queen’s Bench through the motions coordinator. [46] The authorizing judge was not involved in the Project Sideshow file during the time that he was employed at the PPSC.

He was appointed to the Court of Queen’s Bench just over two months after it came into the office. [47] The authorizing judge issued the wiretap authorizations just over three months after his appointment to the Court ofQueen’s Bench. On the day that the former colleague filed the application for the wiretap authorizations with the Court of Queen’sBench, the authorizing judge was assigned to be the “duty judge”, whose responsibilities included, amongst other things, reviewing suchapplications.

Whether the Motion Judge Properly Applied the “Cooling Off” Period in the Ethical Principles [48] The accused argue that the motion judge failed to properly consider the Ethical Principles in his analysis and thiscaused him to err in finding that no reasonable apprehension of bias existed. [49]

Chapter 6, Part E, guideline E.19 of the Ethical Principles (the guidelines) provides: E.19 Former Clients . . . The following are some general guidelines which may be helpful: (

a) A judge who was in private practice should not sit on any case in which the judge or the judge’s former firm was directly involved aseither counsel of record or in any other capacity before the judge’s appointment. (

b) Where the judge practised for government or legal aid, guideline (

a) cannot be applied strictly. One sensible approach is not to sit oncases commenced in the particular local office prior to the judge’s appointment. (

c) With respect to the judge’s former law partners, or associates and former clients, the traditional approach is to use a “cooling offperiod,” often established by local tradition at 2, 3 or 5 years and in any event at least as long as there is any indebtedness between thefirm and the judge and subject to guideline (

a) above concerning former clients. [50] The accused argue that the motion judge erred in dismissing their arguments regarding the applicability of theguidelines in his consideration of whether a reasonable apprehension of bias existed in the circumstances of this case. They argue thatconsideration of the guidelines supports their contention that a reasonable apprehension of bias was created in that the Project Sideshowfile was in the office at the same time that the authorizing judge worked for that office and that the applications for the wiretapauthorizations were made by the former colleague.

In support of their position they rely on MacDonald Estate v Martin, (SCC), [1990] 3 SCR 1235, to argue that, “If there reasonably exists a danger that confidentialities have been breached, all lawyers whocould be privy to the confidentialities are disqualified”. [51] The accused also argue that the guideline regarding a traditional “cooling off period” should apply to situations where a

judge was previously a government or legal aid lawyer.

In this regard, they underscore that the authorizing judge issued the first wiretapauthorization only three months after his appointment to the bench. [52] Regarding the authorizing judge’s prior employment at the PPSC office and any possible effect it could have hadregarding an apprehension of bias regarding Project Sideshow, the motion judge found that: • the authorizing judge was only in the office for a period of two and one-half months during the very preliminary stages of theProject Sideshow investigation (see para 48); • no one from the PPSC or the WPS discussed Project Sideshow with the authorizing judge (see para 47); • the authorizing judge had “no involvement or

part in any aspect of Project Sideshow” (see para 22); • the former colleague who filed the application for the wiretap authorizations did not speak with the authorizing judge duringthe process of the application or authorization (see para 27); • the former colleague’s involvement in the Singh prosecution was limited and there was no evidence to support any“connection” or “alignment” as between them that would support a reasonable apprehension of bias (see paras 66, 68). [53] The motion judge held that the guidelines are not a de facto code of conduct (see para 57), that there can be reasonabledisagreements as to their application, and that they did not form a rigid set of rules which could reasonably and practically co-exist withthe test for reasonable apprehension of bias, which is more nuanced and fact-specific.

He questioned the practical application of theguidelines in the case of former Crown prosecutors. The motion judge found that the “cooling off period” guideline was suggested in thecontext of judges who come to the bench from private practice, where there are concerns such as ongoing financial connections with theformer firm and related connections to former partners, associates and clients. [54] As for the accused’s arguments, first, their reliance on MacDonald Estate is misguided.

As pointed out by the motionjudge (at para 55), in R v Bagot, 2000 MBCA 30, this Court rejected the notion that MacDonald Estate applies in a situation such as this. Bagot involved an allegation of reasonable apprehension of bias concerning a judge who was a former Crown prosecutor. In rejectingthe allegation, the Court emphasized that it is important not to conflate issues of conflict of interest and reasonable apprehension of bias. It stated (at paras 11-12): Let me add a word or two about the test for conflict of interest that was established in MacDonald Estate.

I do so because counsel forthe accused argues that that test “is clearly relevant to the circumstances of the (accused).” The tests to be applied with respect to a conflict of interest and to an apprehension of bias have some common elements. Both tests haveas their principal objective the preservation of public confidence in the administration of justice; and whether particular circumstancesgive rise to a conflict of interest or to an apprehension of bias will be determined objectively using the standard of the reasonable andinformed person.

As we have seen, “cogent evidence” is required to support the conclusion that an apprehension of bias exists, that is, torebut the presumption of judicial integrity.

The test in MacDonald Estate for conflict of interest, on the other hand, is concerned with thesanctity of communications passing between a lawyer and his or her client. [55] Second, we agree with the motion judge that the absence of a “cooling off period” was not determinative of reasonableapprehension of bias in this case. [56] Canadian case law is clear that no reasonable apprehension of bias exists merely because a judge who is a formerCrown prosecutor presides over a criminal matter that was “in the office” while they were still a Crown prosecutor.

See Bagot;Wewaykum; R v Melnichuk, 2004 BCCA 332; and Boardwalk Reit LLP v Edmonton (City), 2008 ABCA 176 at para 85. [57] Moreover, the notion that the Ethical Principles are to be strictly applied in reasonable apprehension of bias cases hasbeen rejected in Rando Drugs Ltd v Scott, 2007 ONCA 553 at paras 21, 24-26; and Alpha Manufacturing at paras 16-17. [58] We would not interfere with the motion judge’s finding that a consideration of all of the circumstances surrounding theauthorizing judge’s prior employment at the PPSC, including the fact that he worked at the PPSC for a short period of time when theProject Sideshow file was in the office, did not raise a reasonable apprehension of bias.

Furthermore, he did not err when he found thatthere was no evidence to support the notion that the relationship between the former colleague and the authorizing judge was sufficientto raise a reasonable apprehension of bias. [59] Finally, the motion judge did not err in finding that the fact that the authorizing judge had been involved three yearsbefore in the Singh prosecution with one of the targets of the wiretap authorizations was not enough to raise a reasonable apprehension ofbias.

The jurisprudence is rife with examples where trial judges who have had previous conduct of a prosecution of an accused personlater preside over a trial of that person in another matter and no bias has been found. See R v Dorscheid, 1991 ABCA 146; R v Perciballi(2001), (ON CA), 154 CCC (3d) 481 (Ont CA); and R v Moosomin, 2008 SKCA 168. The authorizing judge’s priorinvolvement with the accused in this case is even more removed than that of having previously prosecuted them.

Relevance of Recollection and Lack of Knowledge [60] The accused submit that the motion judge’s misapplication of the test was “compounded” by the fact that he:

i) took judicial notice that “as a federal prosecutor, [the authorizing judge] would have had . . . involvement in innumerable drug

prosecutions and classes of drug prosecutions” when considering the ability of the authorizing judge to recall the Singh prosecution (at para 51); and ii) found that the authorizing judge had not had any conversations with anyone related to Project Sideshow, save for a brief conversation wherein the former colleague advised him that she had been assigned the file, when considering what, if any, knowledge the authorizing judge had regarding Project Sideshow (see paras 22, 47). [ 61 ] The accused argue that the motion judge should not have considered the above two factors because they were irrelevant to the analysis of reasonable apprehension of bias, given that the accused did not allege any actual bias on behalf of the authorizing judge. [ 62 ] In our view, this argument cannot succeed.

Context is required in the assessment of a reasonable apprehension of bias even where no actual bias is alleged. Indeed, the Supreme Court of Canada undertook the same analysis in Wewaykum . [ 63 ] When the motion judge commented that the authorizing judge would have worked on “innumerable” files during the three years after the Singh prosecution, he was simply making a comparison to the facts in Wewaykum (see para 51). However, unlike in Wewaykum , there was no evidence in this case as to whether the authorizing judge had any memory of the Singh prosecution.

The motion judge gave the benefit of the doubt to the accused when he said that he would “assume without deciding that [the authorizing judge] did have an independent recollection of the facts involved in the Singh prosecution that went beyond that which was included in the [Project Sideshow] affidavit” (at para 73). We see no error in this approach. [ 64 ] As for the accused’s next argument, one must make a distinction between lack of recollection and lack of knowledge.

In Wewaykum , the Supreme Court of Canada rejected the argument that Binnie J’s lack of recollection of his dealings with the impugned file was irrelevant in determining whether a reasonable apprehension of bias existed. The Court held that his lack of recollection of the file was relevant but not determinative (see para 90). [ 65 ] However, a lack of knowledge on the part of the judge may be determinative.

In Wewaykum , the Court questioned the possibility of a finding of bias where the judge has no knowledge of the facts giving rise to an argument of bias, whether based on a conflict of interest or otherwise (at para 88). See also Locabail (UK) Ltd v Bayfield Properties Ltd , [2000] QB 451 at 487 (CA); and Boardwalk Reit LLP . [ 66 ] We do not agree that the motion judge erred by considering the authorizing judge’s lack of knowledge of Project Sideshow. Total lack of knowledge is highly relevant to the analysis of reasonable apprehension of bias.

Ex Parte Nature of Wiretap Authorizations [ 67 ] The accused argue that, because the granting of a wiretap authorization involves a significant invasion of privacy, there is an obligation on the part of the judiciary to ensure that the appearance of impartiality is “beyond reproach.” They state that the fact that the process is ex parte creates an even greater concern. On the other hand, they concede that the fact that the procedure was ex parte was not determinative.

Rather, they maintain that it is a contextual factor that should be considered as part of the cumulative effect of all of the factors that they have identified. [ 68 ] To the extent that the accused suggest that the test for apprehension of bias in respect of ex parte proceedings is higher than that enunciated in Yukon , we disagree.

As we explained earlier, in determining reasonable apprehension of bias where the decision- maker is a judge, there is no spectrum of thresholds based on the nature of the decision being considered or the process by which it is reached. [ 69 ] At this point, we pause to note that, prior to reviewing the material offered in support of the application, it was brought to the authorizing judge’s attention that the former colleague was making the application. Neither the authorizing judge nor the former colleague perceived a conflict.

She swore an affidavit stating that she did not “discuss any aspect” or “consult . . . on any legal issues” of Project Sideshow with the authorizing judge when they were both employed at the local office of the PPSC. [ 70 ] The accused argue that, while the issue of conflict may have been considered by the authorizing judge, the issue of reasonable apprehension of bias was not. [ 71 ] The motion judge stated that he was sensitive to the “justifiable concerns and cautions that are traditionally noted in relation to ex parte hearings” (at para 99).

Despite that, he held (at para 102): The facts of this case are such that based on the conversations as between the motions coordinator and [the former colleague], and the motions coordinator and [the authorizing judge], there can be little doubt that [the authorizing judge] was indeed “alive” to the issue that potentially could give rise to questions about his impartiality.

Although in the affidavit material the issue was somewhat loosely and imprecisely referred to as “a conflict”, judges are assumed to know the law and it need be assumed that when the motions coordinator reported to [the former colleague] that [the authorizing judge] had no concerns about “a conflict”, the [authorizing judge] was aware that this issue was one that touched the question of his impartiality and would have engaged the applicable test for determining the existence of a reasonable apprehension of bias.

On the basis of the evidence before me and the absence of cogent evidence to the contrary, it is clear that [the authorizing judge] was alive to the issue of his impartiality. [ 72 ] In our view, the motion judge squarely addressed the issue of reasonable apprehension of bias and further held that the authorizing judge would have been alive to the issue as well. Thus, to the extent that the ex parte nature of the proceeding constituted part of the context of the authorization, it was considered and we would dismiss this argument.

Lack of Reasons or Record for Granting the Wiretap Authorizations [ 73 ] The accused argue that the authorizing judge’s decision is not properly reviewable by the motion judge because the authorizing judge gave no reasons. In particular, there is no record of whether the authorizing judge had an independent recollection of the names of the targets in the information to obtain and he gave no reasons why he granted the wiretap authorizations or why he did not recuse himself.

The accused submit that the lack of reasons is a factor that tends to support a finding of reasonable apprehension of bias. [ 74 ] The motion judge addressed this issue. He acknowledged that there was no direct evidence before him as to whether the authorizing judge recalled the Singh prosecution in 2009 or other details of the broader 2005 WPS investigation (see para 72). Again, for purposes of his apprehension of bias analysis, the motion judge assumed that the authorizing judge had such a recollection. He did so in order to give the accused the benefit of a strong foundation for their arguments.

Ultimately, the motion judge concluded that, even on this assumed set of facts, the accused failed to demonstrate that a reasonable apprehension of bias existed. [ 75 ] We agree with the Crown’s position that the absence of reasons is a neutral factor. Reasons for the granting of a wiretap authorization are not typically given. [ 76 ] In our view, the motion judge made no error in his approach or analysis. In light of the lack of reasons for decision and evidence as to the authorizing judge’s recollection, the motion judge took an approach designed to give the benefit of the doubt to the accused.

We would not interfere. Cumulative Analysis [ 77 ] The accused say that the motion judge independently considered each factor that tended to indicate a reasonable apprehension of bias and rejected each one individually. However, they argue that the motion judge erred in failing to consider the relevant factors cumulatively. [ 78 ] The accused concede that the motion judge stated that he had considered all the factors “both for their individual significance and for their cumulative effect” (at para 113).

Nonetheless, they argue that this is mere “lip service” and that the motion judge placed too much emphasis on the presumption of judicial integrity. [ 79 ] We are not persuaded that the motion judge failed to cumulatively assess the facts relied on by the accused. He stated that he did so, and his detailed and careful reasons show that he considered every argument raised by the accused. As previously mentioned, a judicial bias analysis is highly fact-driven. The motion judge’s finding, that the cumulative effect of the factors fell short of the burden on the accused, is entitled to deference.

Conclusion [ 80 ] In the motion judge’s comprehensive reasons, he correctly applied the legal principles and carefully considered all of the relevant evidence and the arguments of the accused. Considering the matter through the lens of a reasonable, informed person, we have not been convinced that appellate intervention is warranted. We would not interfere with the motion judge’s conclusion that there was not a reasonable apprehension of bias in the circumstances of this case . [ 81 ] The appeal of the pre-trial ruling of the motion judge is dismissed.

In the result, the appeals of Ronald Baldovi, Chandeep Dhaliwal and Jasdeep Warraich are dismissed. The appeals of Oliver Banayos and Carol Banayos with respect to issues raised relating to their substantive appeals from conviction and sentence were heard on May 1, 2018 and are under reserve. CJM JA JA