Truckair v. Canada (Attorney General), 2011 NSSC 398

SUPREME COURT OF NOVA SCOTIA Citation: Truckair v. Canada (Attorney General), 2011 NSSC 398 Date: October 28, 2011 Docket: Syd. No. 346310 Registry: Sydney Between: Robert Moses Truckair Applicant v. The Attorney General of Canada, The Attorney General of Nova Scotia, and the Provincial Court Judge Robert Stroud Respondents LIBRARY HEADING Judge: The Honourable Justice Cindy A. Bourgeois Heard: October 17, 2011, in Sydney, Nova Scotia Subject: Judicial Review of provincial court judge ’ s failure to recuse himself and extraordinary Remedies of Certiori and Mandamus .

Summary: The Applicant asserted comments made by the provincial court judge gave rise to a reasonable apprehension of bias and sought his recusal. The judge declined to recuse himself. The Applicant brought the matter before the Supreme Court seeking an Order of Certiori , setting aside the judge ’ s decision not to recuse himself, and an Order of Mandamus that the matter be returned to be heard by another provincial court judge. Result: Based upon the cumulative effect of several comments made by the provincial court judge, the Application was granted.

THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET . SUPREME COURT OF NOVA SCOTIA Citation: Truckair v. Canada (Attorney General), 2011 NSSC 398

Date: October 28, 2011 Docket: Syd. No. 346310 Registry: Sydney Between: Robert Moses Truckair Applicant v. The Attorney General of Canada, The Attorney General of Nova Scotia, and the Provincial Court Judge Robert Stroud Respondents Judge: The Honourable Justice Cindy A. Bourgeois Heard: October 17, 2011, in Sydney, Nova Scotia Counsel: Ralph W. Ripley, for the Applicant Andrea E.

Jamieson, on behalf of the Attorney General of Canada By the Court : INTRODUCTION [ 1 ] The Applicant has filed a Notice of Judicial Review seeking an Order of Certiori in relation to a decision of Provincial Court Judge Stroud not to recuse himself as trial judge in relation to charges before that Court, as well as an Order of Mandamus directing that the Applicant's trial be held in front of another Provincial Court Judge. The Notice, filed March 31, 2011, was in relation to proceedings before the Provincial Court on March 1, 2011.

The core of the Applicant's motion is that there is a reasonable apprehension of bias, given comments made by the provincial court judge during the above noted hearing. The only Respondent who chose to participate in the review was the Federal Crown.

BACKGROUND [ 2 ] Requesting a judge to recuse himself or herself based on a reasonable apprehension of bias, is not a matter to be raised lightly. Certainly this Court, as did the parties before it, recognizes the gravity of the issue to be determined. Because of this, and to fully place the application in full context, a background review, somewhat broader than the norm is in order. [ 3 ] The Applicant was charged on October 14, 2009 with six counts under section 22(7) of the Fishery (General) Regulations , SOR/93-53.

As part of the investigation search warrants were sought and authorised on June 9, 2009 by Provincial Court Judge Ross. Various items including traps, a logbook, a Hilroy scribbler and other documents were seized pursuant thereto. [ 4 ] Following an ex parte application, Provincial Court Judge Whalen extended the retention of the goods seized pursuant to the earlier warrant until November 23, 2010.

The Applicant was concerned that the extension was granted without notice to him, and he brought an application in Provincial Court on February 9, 2011 alleging that his rights pursuant to s. 8 of the Charter of Rights and Freedoms were infringed. As a remedy, the Applicant was seeking exclusion of the logbook, Hilroy notebook, and other documents seized pursuant to the initial search warrant. [ 5 ] The Charter application was scheduled for March 1, 2011.

However, before delving into what took place at that hearing, further background is required. [ 6 ] The Applicant is, and was at all material times, represented by Mr. Ripley. As circumstances would have it, Mr. Ripley had been involved in another fisheries prosecution, involving a Mr. Laporte. According to both parties, there is no connection between the Applicant herein, and Mr. Laporte other than they were both charged with fishery offences, both were represented by Mr. Ripley, and both had extension orders issued on an ex parte basis. On behalf of Mr.

LaPorte, Counsel filed a Charter application seeking exclusion of evidence, virtually on identical grounds as the Charter application filed in relation to the Applicant's matter. The LaPorte Charter application was heard on December 14, 2010 by the same provincial court judge, and it was dismissed. [ 7 ] There was one material difference in terms of the Charter applications in relation to the two matters, namely, how the parties viewed the issue of the court's jurisdiction.

In the present matter, the Respondent Crown, in response to the Charter application asserted that the Provincial Court had no jurisdiction to hear the application, with this argument being put forward, with authorities in the written brief submitted to the judge in advance of the March 1, 2011 hearing. This argument was not raised in LaPorte by either the applicant or the respondent Crown, and as noted above, the provincial court assumed jurisdiction, heard the application and dismissed it on its merits. Mr.

Ripley had not, in the present case, included any argument in his pre-hearing written submissions about the jurisdictional issue. ISSUES BEFORE THE COURT [ 8 ] In her written submissions and in argument before the Court, Counsel for the Respondent acknowledged a number of key points, which served to greatly streamline the issues for determination. [ 9 ] As an appeal is not a remedy available to the Applicant in relation to the March 1, 2011 decision of the provincial court judge to not recuse himself, the extraordinary remedies are available in the present instance, although these are discretionary.

Further, it appears to be agreed by the parties, that should a reasonable apprehension of bias be determined, such a finding goes to a judge's jurisdiction, and renders him or her unable to continue in a matter.

It is further conceded that the Applicant herein, raised the allegation of apprehension early in the proceedings, and that delay in that regard is not an issue before the Court. [ 10 ] What appears to be the sole, but hotly contested issue before this Court, is whether the comments of the provincial court judge give rise to a reasonable apprehension of bias, thus resulting in his loss of jurisdiction to continue to preside in relation to the Applicant's

matter. The Applicant points to a number of comments which he asserts gives rise to an apprehension. The Respondent says that basedupon a full contextual analysis, the comments made in the particular facts of this case, not only fall far short of giving rise to anapprehension of bias on the judge's part, but are completely appropriate. THE LAW [11] There is no real disagreement between the parties as to the law relating to the issue in contention. Both, in their writtenmaterials, have relied upon similar passages from previous Supreme Court of Canada authorities.

Two decisions have been provided tothis Court for consideration, namely R. v. S.(R.D.), (SCC), [1997] 3 S.C.R. 484, and Wewaykum Indian Band v.Canada 2003 SCC 45. In my view, the standard outlined in both for disqualification of a judge due to a reasonable apprehension of bias,is not dissimilar. [12] The more recent decision, Wewaykum, supra, was rendered unanimously by 8 members of the Court and provides a conciseview of the importance of judicial impartiality, and the requirement for disqualification.

The Court writes as follows: 57 . . .Simply put, public confidence in our legal system is rooted in the fundamental belief that those who adjudicate in law must alwaysdo so without bias or prejudice and must be perceived to do so. 58. The essence of impartiality lies in the requirement of the judge to approach the case to be adjudicated with an open mind. Conversely, bias or prejudice has been defined as: a leaning, inclination, bent or predisposition towards one side or another or a particular result.

In its application to legal proceedings, itrepresents a predisposition to decide an issue or cause in a certain way which does not leave the judicial mind perfectly open toconviction. Bias is a condition or state of mind which sways judgment and renders a judicial officer unable to exercise his or herfunctions impartially in a particular case. (R. v. Bertram, [1989] O.J No. 2123 (QL) (H.C.), quoted by Cory J, in R. v. S. (R.D.), (SCC), [1997] 3 S.C.R. 484, atpara. 106) 59.

Viewed in this light, "[impartiality is the fundamental qualification of a judge and the core attribute of the judiciary"(CanadianJudicial Council, Ethical Principles for Judges (1998), at p. 30). It is the key to our judicial process, and must be presumed. As wasnoted by L'Heureux-Dube J. and McLachlin J. (as she then was) in S. (R.D.), supra, at para. 32, the presumption of impartiality carriesconsiderable weight, and the law should not carelessly evoke the possibility of bias in a judge, whose authority depends upon thatpresumption.

Thus, while the requirement of judicial impartiality is a stringent one, the burden is on the party arguing fordisqualification to establish that the circumstances justify a finding that the judge must be disqualified. 60. In Canadian law, one standard has now emerged as the criterion for disqualification. The criterion, as expressed by de Grandpre J. inCommittee for Justice and Liberty v.

National Energy Board, supra, at p. 394, is the reasonable apprehension of bias: . . . 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. In the words of the Court of Appeal, that test is "what would an informed person,viewing the matter realistically and practically - - and having thought the matter through - - conclude.

Would he think that it is morelikely than not that [the decision -maker], whether consciously or unconsciously, would not decide fairly. [13] The Court further articulates that when questioning whether a reasonable apprehension of bias exists, the analysis must be afull and contextual one, based upon the particular facts of the situation under review - see paragraph 76. ANALYSIS

[ 14 ] This Court starts from a presumption that the provincial court judge was impartial. The burden rests upon the Applicant to raise a reasonable apprehension of bias, based upon consideration of the full context. [ 15 ] The Applicant points to several comments made by the provincial court judge in the course of the March 1, 2011 hearing which together it is submitted, give rise to a reasonable apprehension of bias. Each of these will be considered in turn. [ 16 ] At page 2 of the transcript, lines two through nine, the court states: THE COURT: . . .you're just basically on arguments.

I've read the briefs very thoroughly. I just got them last night but I got here in time to spend the evening going through them all. So I don't want to say anything to indicate I've come to a conclusion, but you probably have a pretty good idea how I am thinking you know. But I must say I read the crown's brief and I was very impressed with that, and I am inclined to think the crown is right that I don't have any jurisdiction here. It was never brought to my attention before but eh.

So having said that where do we go from here? (Emphasis added) [ 17 ] As pointed out earlier, the Applicant had not in the present matter, or in the LaPorte matter previously, given consideration to the issue of whether the Provincial Court had the jurisdiction to hear the Charter application. The Applicant had not, unlike the Respondent Crown, had the opportunity at that stage of the proceedings, to put forward its view on the jurisdictional issue. [ 18 ] At page 4 of the transcript, lines six through 10, the court states: THE COURT: I could certainly give you time to get in touch with him.

I mean I wouldn't want to say it with your client being here, but since he's not here, I think it would be a waste of your client's money to proceed with this. I just think, I am convinced by the crown's argument that you have no basis for this - it has no merit. The application just has no merit. [ 19 ] A review of the transcript discloses that Mr. Ripley was not aware that the provincial court judge hearing the present matter, was the same as in the earlier LaPorte matter.

His client was not present, and he did not have instructions on how to respond to any potential concern regarding the same judge being involved in both matters. Clearly, the provincial court judge was open to Mr. Ripley having the opportunity to attempt to consult with his client in that regard. [ 20 ] At page 4 and 5 of the transcript, the following exchange continues between the provincial court judge and Applicant's counsel: MR.

RIPLEY: Which, and I appreciate Your Honour's candor in saying that because we didn't get a chance to make any argument with respect to the jurisdictional matter because we only found out about it when we received the brief. THE COURT: Yes. Well I am prepared to hear the arguments, but if you want to check with your client to make sure he's okay with this proceeding. MR. RIPLEY: But with all due respect, Your Honour, when you say you're prepared to hear the argument, you just said a short time ago that you were convinced based upon the crown's brief and argument that there was no jurisdiction to hear the matter.

THE COURT: Well that convinced me, you can try to unconvince me if you have arguments to the contrary, but I eh, you know, the brief was pretty thorough. Maybe I better just recuse myself, I don't know what eh . . . MR. RIPLEY: I will leave that for Your Honour.

THE COURT: Well the question is if I don't recuse myself where do I go this morning from here. You can't raise arguments, you're not prepared. MR. RIPLEY: When you say raise the argument . . THE COURT: About jurisdiction. MR. RIPLEY: . . . I came to argue the jurisdictional matter but Your Honour just indicated that you are convinced from the crown's brief that there was no merit to hear it, and as a result the matter . . . there was no jurisdiction to hear the application. THE COURT: It's a catch 22 then isn't it. MR. RIPLEY: Pardon me. THE COURT: It's sort of a catch 22. MR.

RIPLEY: Correct. (Emphasis added) [ 21 ] The above exchange serves to demonstrate that Applicant's counsel raised with the provincial court judge his concerns about comments the court had made about the strength of the Crown's argument in relation to the jurisdictional issue contained in the written submissions, without having heard anything from the Applicant on that point. [ 22 ] The transcript discloses that the court went into recess to allow Applicant's counsel the opportunity to attempt to contact his client for instructions. Apparently he was unsuccessful in that regard.

However, Counsel at that time requested that the provincial court judge recuse himself, based upon his comments made in relation to the strength of the Crown's argument on the jurisdictional issue.

Counsel states at page 11 of the transcript: . . .And I come back to the comment of when you said, yes I indicted I was convinced, but that leaves it open for you to unconvince me, it does suggest that from that comment there's already been a decision and the thing I wanted to note with respect of the jurisdictional issue is that that was the first . . .we didn't get a chance to address it in our brief because it had never been raised before. Mr.

Iannetti had been the counsel, and as a result what you received was submissions from the crown on the jurisdictional issue, us finding out for the first time on Friday when we received the brief that there is going to be an issue, so we hadn't really made any argument on it, but now we're faced with the prospect of a comment that Your Honour said, I am convinced on the matter, and all that you really heard is the one submission from the crown, which we would suggest, would leave an apprehension of bias, if what we have to do as Your Honour has indicated in your comments, unconvince you.

So I would leave that to Your Honour. [ 23 ] In response the provincial court judge states as follows: THE COURT: No I don't accept that. After 24 years on the bench I think I am capable of being unconvinced, maybe I was a little too strong in saying I was convinced , but I did say I was impressed with the crown's brief but that doesn't mean I have come to a final conclusion. (Emphasis added) [ 24 ] The provincial court judge goes on at page 12 of the transcript to indicate that during the break he gave further consideration

to whether he would recuse himself from the matter, and that it was his view, it would make no sense to do so, stating as follows,commencing at line four: THE COURT: ... [A]nd for me to recuse myself and bring in another judge, you're looking for a different decision from the same court,not so much you talk about the jurisdictional issue now going to the Charter thing.

That doesn't make any sense, it's only going to beresolve, you know, you're judge shopping to put it frankly and to do that means that . . any if you get a different decision then you gottwo decisions in the same court, it's got to be resolved, so the best way to resolve the issue if you don't like my decision on this sameissue, not the jurisdiction one, but the same issue in relation to the Charter argument that you made, then the remedy is for you to appealthe LaPorte matter, and perhaps put this matter off until that's resolved, which means we're not through, I still have to come back here inMay to do the decision on your Charter application on the LaPorte matter.

I am assuming from what you've said that you wouldn't be ina position to appeal the Charter argument, the first one that I ruled against you on until after that case is resolved. (Emphasis added) [25] The Applicant further raises concern with respect to several other comments, found at page 13 of the transcript where theprovincial court judge states as follows: THE COURT: Yes, so regardless of the jurisdictional argument at this point, although it should be resolved, but regardless of that, you'regoing to end up with the same decision.

You know, I don't know . . . you've made the same argument, the same cases, and I lookedcloser at those cases and I don't think they're all that relevant. And later on the same page at line 14: So the whole thing is much to do about nothing in my view, but you're going to get the same decision no matter what. But you can'tjust go looking for another judge to give you another decision. (Emphasis added) [26] The last two comments appear to be in relation to the ultimate merits of the Charter application, not the preliminary issue ofwhether the Provincial Court has the jurisdiction to hear such a matter.

All of the above comments were made prior to either partyembarking upon submissions in relation to the jurisdiction of the Provincial Court.

Submissions on the merits of the Charter motionitself were put off until the court reached a determination on the jurisdictional issue. [27] The Applicant argues that any number of the above comments, alone, may give rise to a reasonable apprehension of bias onthe part of the provincial court judge, but when viewed collectively, the burden has been more than satisfied. [28] The Respondent asserts that none of the comments of the provincial court judge would give rise to a reasonable apprehensionof bias, even when viewed cumulatively, based upon the above noted test.

It is further asserted that when one looks at the entirecontext, the provincial court judge acted fairly and reasonably.

This Court was reminded that the provincial court judge gave theopportunity for Applicant's counsel to attempt to contact his client; made it clear he had not reached a final decision on the issue ofjurisdiction; and reserved his decision on that point for a further two months, and permitted the Applicant to file further writtensubmissions should he wish. [29] The Respondent further argues that the provincial court judge was certainly entitled to comment upon the likely merits of theCharter application, which was virtually identical to one previously determined by the court, as part of his administrative "gatekeeping"function and obligation to control frivolous matters before the Court. [30] It was further submitted that although the provincial court judge's comments may be viewed as somewhat critical, that"reasonable and unbiased" criticism of counsel or their client's position is permissible.

The Respondent relies upon the following viewof the Ontario Court of Appeal in R. v. McCullough, (ON CA), [1998] O.J. No. 2914: 17 A trial judge is entitled to make reasonable criticism respecting the conduct of counsel and witnesses who appear in court. The

17 A trial judge is entitled to make reasonable criticism respecting the conduct of counsel and witnesses who appear in court. Thetrial judge's inquiries of the conduct of a witness and the appellant's counsel were neither unreasonable nor otherwise improper. He wasconcerned that certain events had caused considerable inconvenience, expense and loss of court time. He expressed his concerns in areasonable manner. The criticism voiced by the trial judge was not misplaced and it cannot be said to support an apprehension of bias.

In its proper context, it did not demonstrate "a predisposition to decide an issue or cause in a certain way that does not leave the judicialmind perfectly open to conviction" See R. v. Bertram, [1989] O.J. No. 2123 as cited in R.D.S. v. The Queen (1997), (SCC), 118 C.C.C. (3d) 353 (S.C.C.). DETERMINATION [31] It is clear from a review of the transcript that a number of factors made the circumstances faced by the provincial court judgeunusual to say the least.

Several comments within the transcript suggest that in hindsight, the provincial court judge may have declinedto hear this matter if he had been aware of the nature of the charges and the position being advanced by counsel. I have no doubt that theprovincial court judge tried to do his best with a difficult situation. [32] Notwithstanding his intentions, the comments made by the provincial court judge have to be assessed within the entirecontext and determined whether they gave rise to a reasonable apprehension of bias.

The question can thus be framed as follows: Woulda reasonable and informed person, after having thought the matter through conclude that it was more likely than not that the provincialcourt judge was predisposed to decide an issue or the entire matter before him in favour of the Respondent; and his mind was notcompletely open to the position of both parties? [33] With the utmost respect, and with regret, I conclude that the above inquiry must be answered in the affirmative. [34] This Court was presented with a number of case authorities where comments made by a judge were considered.

Whether thecomments gave rise to a reasonable apprehension of bias was dependent upon the facts in each case. What is important to note in thepresent instance, is that the concerning comments relate directly to the potential outcome of the jurisdictional issue as well as the Chartermotion overall.

Unlike some of the case authorities where the comments were not about an issue for determination, or for example, anobservation about the general social context in which a dispute has arisen, these comments go to the very heart of what the provincialcourt judge was being asked to adjudicate upon. [35] I have also noted and considered carefully the Respondent's submission that the provincial court judge made clear in hiscomments that he had not made a final determination on the jurisdiction issue, or the overall merits of the Charter application.

Withrespect, whether or not a judge has made a final decision in relation to a matter is not the determinative consideration. As noted above, aleaning, an inclination or a predisposition to decide an issue or a matter can be sufficient to give rise to a reasonable apprehension of bias. [36] With respect to the jurisdictional argument, the provincial court judge indicated after reading only the Respondent's writtensubmissions that he was "inclined to think the crown is right" and that the court did not have jurisdiction to hear the application(transcript - page 2).

Shortly thereafter, the provincial court judge indicates he was "convinced" by the Respondent Crown's argumentand asserted it was a "waste" of the Applicant's money to proceed with the application. The provincial court judge later asserts that theargument contained in the Crown's brief had "convinced" him, but suggest the Applicant could try to "unconvince" him in hissubmissions. [37] After seeking his recusal, the provincial court judge seems to acknowledge to Applicant's counsel that his earlier choice ofwords may have been too strong (page 11). As was noted by Cory, J. in R. v.

S. (R.D.), supra, at paragraph 118: . . . Every comment that a judge makes from the bench is weighed and evaluated by the community as well as the parties. Judges mustbe conscious of this constant weighing and make every effort to achieve neutrality and fairness in carrying out their duties.

[ 38 ] With respect, the provincial court judge's subsequent comments that he had not made a final determination, and that his previous comments may have been expressed too strenuously, do not serve, to "unring the bell". The provincial court judge's own words would give rise to a reasonable apprehension that he was inclined, without having heard from the Applicant, to agree with the Respondent's position on jurisdiction.

His subsequent comments would not, in my view, serve to alleviate the apprehension. [ 39 ] As was noted above, there were additional comments of concern including an allegation made by the provincial court judge that Applicant's counsel was "judge shopping". The comments of the provincial court judge could reasonably be interpreted as suggesting that counsel's motive for raising the reasonable apprehension of bias argument, was not due to the stated concerns regarding the court's comments regarding the strength of the Crown's view on jurisdiction, but rather as an attempt to have another judge hear the matter.

Further, the provincial court judge made additional comments regarding the likely outcome of the Charter application, should it be considered by him on its merits. [ 40 ] The Respondent submits that these comments are not concerning, as it is the function of a trial judge to guard against "judge shopping", and that commenting on likely outcomes based upon past authorities is simply part of what judges do. I agree that individually such comments would in most circumstances not give rise to a reasonable apprehension of bias.

However, the analysis must be a contextual one, and the comments must be considered in light of those which preceded them. Although these additional comments may not individually give rise to a reasonable apprehension of bias, in my view, there is a cumulative effect. Along with the previous comments considered, and when viewed in the entire context in which they were made, the comments would certainly contribute to a reasonable person concluding there was a reasonable apprehension of bias, and that the provincial court judge's mind was not "perfectly open" to the positions of both parties.

CONCLUSION [ 41 ] Based on the above, the Applicant is entitled to an Order of Certiori overturning the decision of the provincial court judge to not recuse himself, and further, an Order of Mandamus directing that the trial and pre-trial motions be heard by another judge of the Provincial Court. J.