Bruce Clarke, R. Blois Colpitts v. Daniel Potter, 2014 NSSC 431

SUPREME COURT OF Nova Scotia Citation: R. v. Clarke , 2014 NSSC 431 Date: 20141208 Docket: CRH 346068 Registry: Halifax Between: Bruce Clarke, R. Blois Colpitts and Daniel Potter Applicants v. Her Majesty the Queen Respondent DECISION ON RECUSAL MOTIONS Judge: The Honourable Justice Kevin Coady Heard: December 4, 2014 in Halifax, Nova Scotia Oral Decision: December 8, 2014 Written Decision: December 10, 2014 Counsel: Mark Covan, James Martin and Scott Millar, for the Federal Crown Barry Whynot, for the Bruce Clarke Craig Garson, Q.C., for R.

Blois Colpitts George MacDonald, Q.C. and Gavin Giles, Q.C., for Daniel Potter By the Court: (Orally) [ 1 ] Messrs. Clarke, Colpitts and Potter face trial on fraud based charges related to allegations of unlawfully affecting the public market price of shares of Knowledge House Incorporated (KHI) between 2000 and 2001.

A lengthy trial is scheduled to start on January 12, 2015. [ 2 ] On November 21, 2014 all three defendants filed a Notice of Application “for an order recusing the trial judge, the Honourable Justice Kevin Coady, from any further involvement in the proceedings.” The grounds pled in the Notice include remarks I made in a June 26, 2014 case management conference wherein I indicated the trial dates set for January, 2015 would not move “come hell or high water.” [ 3 ] The grounds pled also reference remarks gleaned from an October 31, 2014 formal decision respecting third party production ( 2014 NSSC 392 ).

The comments that attracted the defendant’s attention are as follows: • “There is absolutely no good reason for the defendants to be allowed to circumvent O’Connor .” • “I can only conclude that the defendants have an alternative purpose in proceeding as they have.” • “It is my view that the defendant’s approach amounts to an ‘end run’ around O’Connor and is driven by

section 11(

b) considerations.” • “It seems to me the defendant’s refusal to return the hard drive is another attempt at the ‘end run’ around O’Connor .” [ 4 ] The grounds pled also includes remarks I made in a November 10, 2014 case management conference wherein I stated the October 31, 2014 decision “had a message in it” and that “those were strong words, those words are not going to change, and they are words that will come into play” in relation to future defence applications. [ 5 ] In relation to the June 26, 2014 comments, the defendants argue as follows: That counsel for [Mr.] Colpitts was sufficiently concerned by the nature of His Lordship’s remarks to inquire whether His Lordship intended to convey that he had pre-judged the previously scheduled s. 11(

b) application.

It is of some note that the defendants have not made a

section 11(

b) application. [6] In relation to the October 31, 2014 decision, the defendants pled the following: That on October 31, 2014, in providing his written reasons for disposing of the application, the trial judge made unnecessary and conclusoryfindings that would cause a reasonable person with knowledge of all the relevant circumstances to conclude that the trial judge has anappearance of bias in that the trial judge has made up his mind on a serious issue that will affect or be prejudicial to the outcome of anyapplications that will be brought by the defendants, including any pre-trial applications pursuant to s. 11(

b) or otherwise of the Charter, and tothe outcome of the trial; In relation to the November 10, 2014 comments, the defendants argue as follows: That the trial judge has exhibited actual bias and, at the very least, a fully informed reasonable person would perceive that the trial judge couldnot impartially adjudicate an issue that he has already decided and subsequently indicated would not change; That in particular the trial judge has made a finding, in advance of any applications that may be brought by the defendants pursuant to theCharter, that the defendants, as opposed to the Crown or the Court, have been the cause of delay associated with the defendants’ efforts toobtain production of the NSSC materials; That the trial judge has made adverse findings with respect to the credibility of the defendants in advance of any testimony that the defendantsmight provide, either in support of any applications or otherwise in the course of the trial in these proceedings; It is of some note that the defendants allege both actual and perceived bias. [7] Judicial impartiality is a cornerstone of the Canadian justice system and is reflected in

section 11(

d) of the Charter of Rights and Freedoms: 11. Any person charged with an offence has the right (

d) to be presumed innocent until proven guilty according to law in a fair and publichearing by an independent and impartial tribunal. The test for impartiality for the purposes of

section 11(

d) is whether the Court may reasonably be perceived as impartial. Independence andimpartiality are fundamental not only to the capacity to do justice in a particular case but also to individual and public confidence in theadministration of justice. It is important that a Court should be perceived as independent and that the test for independence and impartialityshould include that perception. [8] In Valente v. The Queen, (SCC), [1985] 2 S.C.R. 673 Justice Le Dain stated that impartiality refers to “a state ofmind or attitude of the tribunal in relation to the issues and the parties in a particular case” and that the word impartial in

section 11(d)“connotes absence of bias, actual or perceived.” [9] There is very little jurisprudence about judges rendering judgments based on direct self-interest. Judges may, however, be subject to forms of indirect self- interest that are referred to generally as bias. Bias may be relational or attitudinal. Its characteristic manifestation is a closed mind.

In Re Perry, [1929] 51 C.C.C. 105 bias was defined as follows: Bias as applied to a person or tribunal exercising judicial functions is a state of mind disqualifying the person affected from adjudicatingimpartially in respect of the subject-matter under consideration. It is not a concrete fact but is an inference to be drawn from relevant facts.

Thefacts from which bias may be implied take a wide range and include not only financial interest, however slight, by any member of the tribunalin the result of the adjudication; or relationship of any such member within a prohibited degree to a party to the litigation; but, any other interestin or relation to the litigation, which should be assumed to affect any member of the tribunal with prejudice or partiality in relation thereto.

It is well settled that a public perception of widespread bias in the judiciary would threaten the rule of law. [10] In Steven Lubet’s text “Judicial Ethics and Private Lives” 79 Nw. U.L. Rev. 983 (1984-1985), the author stated: In a democracy, the enforcement of judicial decrees and orders ultimately depends on the public co-operation. The level of co-operation, inturn, depends upon a widely held perception that judges decide cases impartially … .

Should the citizenry conclude, even erroneously, thatcases were decided on the basis of favouritism or prejudice rather than according to law and fact, then regiments would be necessary to enforcejudgments. [11] A leading case in the area of judicial disqualification for bias is that of the Supreme Court of Canada in Committee for Justice and Liberty v. Canada (National Energy Board), [1978] 1 S.C.J. No. 118. Chief Justice Laskin stated his view of the test to be applied: This Court in fixing on the test of reasonable apprehension of bias, as in Ghirardosi v.

Minister of Highways for British Columbia, and again inBlanchette v. C.I.S. Ltd., (where Pigeon J. said at p. 842-43, that “a reasonable apprehension that the judge might not act in an entirely impartial

manner is ground for disqualification”) was merely restating what Rand J. said in Szilard v. Szasz, at pp. 6-7 in speaking of the “probability orreasoned suspicion of biased appraisal and judgment, unintended though it be”. This test is grounded in a firm concern that there be no lack ofpublic confidence in the impartiality of adjudicative agencies, and I think that emphasis is lent to this concern in the present case by the fact thatthe National Energy Board is enjoined to have regard for the public interest.

Dissenting Justice de Grandpré stated the test that is most often cited in recusal cases: …the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question andobtaining thereon the required information. In the words of the Court of Appeal, the test is “what would an informed person viewing the matterrealistically and practically— and having thought the matter through – conclude.” [12] In apprehension of bias cases the test is not one of actual bias. Apprehension connotes that there might be bias or that there is a suspicion of bias.

The degree of probability of bias required for recusal is not entirely clear. In R. v. S. (R.D.), (SCC), [1997] 3 S.C.R. 484 Justice Cory agreed with the comments of Justice de Grandpré in the Committee for Justice and Liberty case. He stated: I can see no real difference between … reasonable apprehension of bias, reasonable suspicion of bias or real likelihood of bias. The grounds forthis apprehension must, however, be substantial.

Justice Cory expressed the view that substantial grounds for apprehension are sufficient, even if no assessment of probability is made. [13] The starting point in considering judicial recusal and disqualification for bias and reasonable apprehension of bias is the presumption of impartiality. In Wewaykum Indian Band v. Canada, 2003 SCC 45 Justice Binnie discussed this presumption: … the presumption of impartiality carries considerable weight, and the law should not carelessly evoke the possibility of bias in a judge, whoseauthority depends upon that presumption.

Thus, while the requirement of judicial impartiality is a stringent one, the burden is on the partyarguing for disqualification to establish that the circumstances justify a finding that the judge must be disqualified. In R. v. S (R.D.), supra, Justice Cory set out what the test is for finding reasonable apprehension of bias and how to apply it. He stated at paragraphs 109-111: 109 When it is alleged that a decision-maker is not impartial, the test that must be applied is whether the particular conduct gives rise to areasonable apprehension of bias… It has long been held that actual bias need not be established.

This is so because it is usually impossible todetermine whether the decision-maker approached the matter with a truly biased state of mind… 110 It was in this context that Lord Hewart C.J. articulated the famous maxim: “[it] is of fundamental importance that justice should not onlybe done, but should manifestly and undoubtedly be seen to be done”: The King v. Sussex Justices, Ex parte McCarthy, [1924] 1 K.B. 256, atp. 259.

The Crown suggested that this maxim provided a separate ground for review of Judge Sparks’ decision, and implied that the thresholdfor appellate intervention is lower when reviewing a decision for “appearance of justice” than for “appearance of bias”. This submission cannotbe sustained. The Sussex Justices case involved an allegation of bias. The requirement that justice should be seen to be done simply means thatthe person alleging bias does not have to prove actual bias.

The Crown can only succeed if Judge Sparks’ reasons give rise to a reasonableapprehension of bias. 111 The manner in which the test for bias should be applied was set out with great clarity by de Grandpré J. in his dissenting reasons inCommittee for Justice and Liberty v.

National Energy Board, (SCC), [1978] 1 S.C.R. 369, at p. 394: [T]he apprehension of bias must be a reasonable one, held by reasonable and right-minded persons, applying themselves to the question andobtaining thereon the required information. . . . [The] test is “what would an informed person, viewing the matter realistically and practically --and having thought the matter through -- conclude. …” This test has been adopted and applied for the past two decades.

It contains a two-fold objective element: the person considering the allegedbias must be reasonable, and the apprehension of bias itself must also be reasonable in the circumstances of the case... Further the reasonableperson must be an informed person, with knowledge of all the relevant circumstances, including “the traditions of integrity and impartiality thatform a part of the background and apprised also of the fact that impartiality is one of the duties the judges swear to uphold”: R. v. Elrick, [1983]O.J.

No. 515 (H.C.), at para. 14. …To that I would add that the reasonable person should also be taken to be aware of the social reality thatforms the background to a particular case… [14] In Wewaykum Indian Band, supra, the Supreme Court of Canada cited de Grandpré’s words and offered the following supplementary remarks: First, it is worth repeating that the standard refers to an apprehension of bias that rests on serious grounds, in light of the strong presumption ofjudicial impartiality.

In this respect, de Grandpré J. added these words to the now classical expression of the reasonable apprehension 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 "verysensitive or scrupulous conscience". (Committee for Justice and Liberty v. National Energy Board, supra, at p. 395)

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 the particular circumstances, are of supreme importance." As a result, it cannot be addressed through peremptory rules, and contrary to what was submitted during oral argument, there are no "textbook" instances.

Whether the facts, as established, point to financial or personal interest of the decision- maker; present or past link with a party, counsel or judge; earlier participation or knowledge of the litigation; or expression of views and activities, they must be addressed carefully in light of the entire context. There are no shortcuts. The test for establishing actual bias or reasonable apprehension of bias is meant to be a stringent one requiring the party seeking recusal to demonstrate the existence of real or perceived bias, in the context of the presumption of judicial impartiality.

This presumption prevails in the absence of cogent evidence to the contrary. [ 15 ] The burden resting upon the party that seeks to invoke a reasonable apprehension of bias is a heavy one despite the fact that the standard of proof is on a balance of probabilities. In R. v. S. (R.D.) , supra , the Supreme Court cautioned it is a finding that will not be made lightly and stated at paragraph 113: …the threshold for a finding of real or perceived bias is high. It is a finding that must be carefully considered since it calls into question an 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…. Where reasonable grounds to make such an allegation arise, counsel must be free to fearlessly raise such allegations. Yet, this is a serious step that should not be undertaken lightly. Obviously each case must be examined contextually and the inquiry is fact-specific.

As stated in Wewaykum Indian Band , supra, the test is highly fact-specific and there are no textbook instances. [ 16 ] There are several categories of cases in which bias or apprehension of bias arise: • Personal interests of a financial nature; • Personal interests of a non-financial nature; • Past associations with the litigants or their representatives; • Previous judicial involvement with the litigants; • Extra judicial knowledge of or involvement in the litigation; • Statements or conduct that might indicate pre-disposition.

The applicants herein rely most heavily on the last of these categories. [ 17 ] In a 2003

article in the Canadian Bar Review , Professor Philip Bryden observed that judges must “refrain from expressions of personal animosity or other forms of conduct that could be construed as descending into the fray, or otherwise revealing an unwillingness to give a party a fair opportunity to persuade the judge of the merits of the case.” He added this does not mean that a judge cannot ask questions, or express disbelief of evidence being given by a witness, or indicate a tentative view of how he or she is inclined to decide an issue in dispute.

The key point is that in doing these things the judge must take care not to cross the line into a position where he or she is viewed as an advocate rather than an impartial adjudicator. [ 18 ] In R. v. L.L. , 2013 ABQB 531 the Court indicated that a judge is not creating an apprehension of bias by being openly critical of the Crown or defence counsel where such is appropriate.

Justice Thomas commented as follows at paragraphs 29 and 31: I believe an aspect of my role as a Judge, is that I clearly identify instances where I observe a Crown Prosecutor has acted in a manner that is inconsistent with that lawyer’s duty as an officer of the court. That commentary should be in a manner that leaves no potential for misapprehension, not just for the education of the criminal bar and as common law precedent, but also to maintain public confidence in the courts.

Misconduct or error will typically fall on a range, from comparatively innocent to malevolent and inexcusable… Judges are the authorities who say when an error is technical and does not affect the rights of the accused and others, or ranges to instances where pursuit of criminal sanction is inexplicable and grotesque.

I believe a judge’s duty requires forthright and direct evaluation of the scale and kind of misconduct, and that I do not need to mince words when I assign misconduct on the appropriate point on that spectrum… [ 19 ] The Canadian Judicial Council has stated in “Commentaries on Judicial Conduct” (Cowansville, Que.: Les Éditions Yvon Blais, 1991) at page 12: True impartiality does not require that the judge have no sympathies or opinions; It requires that the judge nevertheless be free to entertain and act upon different points of view with an open mind.

To keep that mind truly open, the judge, more than most, must respond to the challenge of self-examination. It is submitted that the above direction is sound. Depending upon particular mind-sets it may be easier or harder to put into practice. There appears little doubt that judges, being human, will carry with them to the bench certain pre-existing biases that will vary with the individual.

The task of judges is to put aside these biases when hearing and disposing of cases. [ 20 ] The Canadian Judicial Council published a paper entitled “Ethical Principles for Judges.” The following comments on judicial demeanor appear at page 33: Litigants and others scrutinize judges very closely for any indication of unfairness. Unjustified reprimands of counsel, insulting and improper remarks about litigants and witnesses, statements evidencing prejudgment and intemperate and impatient behaviour may destroy the appearance of impartiality.

On the other hand, judges are obliged to ensure that proceedings are conducted in an orderly and efficient manner and that the court’s process is not abused. An appropriate measure of firmness is necessary to achieve this end. A fine balance is to be drawn by judges who are expected both to conduct the process effectively and avoid creating in the mind of a reasonable, fair minded and informed person any impression of a lack of impartiality.

These issues are more fully discussed in chapters 4 and 5,“Diligence” and “Equality.” It bears repeating, however, that any action which, in the mind of a reasonable, fair minded and informed person who has considered the matter, would give rise to reasoned suspicion of a lack of impartiality must be avoided. When such impressions are created, they affect not only the litigants before the court but public confidence in the judiciary generally. [ 21 ] I took over this file on December 5, 2013. KHI has been involved in several proceedings since 2001.

Initially a regulatory proceeding was prosecuted by the Nova Scotia Securities Commission (NSSC). A lengthy and complex civil action followed. On March 17, 2009 these defendants were charged by direct indictment allowing the defendants to go directly to trial. Over the following three years this Court heard a conflict of interest motion, a Rowbotham application, a McNeil application, a motion for particulars, and an application for disclosure of the foundation of the Crown’s expert report. Initially this trial was scheduled to commence on April 2, 2014.

On February 15, 2014 the defendants applied to adjourn the trial. This trial was adjourned until January 12, 2015 primarily because of defence issues accessing and searching the NSSC materials. The following reasons appear at paragraph 61 (Applicant’s Record, Tab 2): An adjournment application is highly discretionary. The Criminal Code applies. It is my view that an adjournment is warranted notwithstanding the persuasive argument advanced by Mr. Martin. While I may find his comments persuasive, I am influenced more by my obligation to ensure Mssrs.

Clarke, Colpitts and Potter have a fair trial and are given every opportunity to make full answer and defence. I added “the

section governing adjournments permits me to attach conditions. They will be • set to a firm date • set parameters on any further interlocutory matter.” [ 22 ] The defendants have always made it clear they wanted to advance a

section 11(

b) delay application and an application for the production of third party records from the NSSC. The record indicates that both this Court and the Crown expressed frustration that 2014 was quickly passing and these applications had not materialized. To date there is no

section 11(

b) motion and an O’Connor application is in its infancy. [ 23 ] In the July 29, 2013 minutes of a case management conference under the heading “Disclosure” appears the following: There was discussion about when the defence would be ready. Mr. Covan said the issue of the Securities Commission files was raised at the first pre-trial in August 2011. He said the Crown has taken the position from the start that this is third party disclosure and the defence have done nothing since til [sic] the subpoena was issued in July. And under the heading “Dates for Further Applications”: There is a question about Mr.

Hodgson’s availability for the dates in October 28 – November 1. Dates are being held November 15-18. Mr. Hodgson will advise of his availability during the week of January 27, 2014 which was previously discussed. The McNeil application was heard on October 17, 2014. [ 24 ] In the July 21, 2014 minutes of a case management conference under the heading “August 11-15 Application” appears the following: These dates have been reserved for some time for the purpose of an O’Connor application respecting NSSC materials. Redacted disclosure and claims of privilege will be addressed. The following

schedule has been accepted by all counsel: ∙ July 30, 2014 – file application and materials (all defendants); ∙ August 6, 2014 – file reply and materials (Crown);

∙ August 8, 2014 – applicant’s reply if any. The following appears under the heading “Mr. Potter’s Application”: This application seeks an order requiring the “disclosure of the civil settlement agreement between National Bank Financial Limited et al. and Dan Potter et al. dated September 3, 2009 related to the Knowledge House Inc. civil litigation.” David Coles, Q.C. will represent National Bank. The following

schedule is now in place: ∙ October 20 - 24, 2014 – hearing; ∙ September 19, 2014 – filing of applicant’s materials; ∙ October 9, 2014 – filing of respondent’s materials; ∙ October 16, 2014 – applicant’s reply if any. And the following appears under the heading “Further Applications”: It is not anticipated that the August 2014 application will take the full week. I indicated that I would hear other defence applications in time not used. Mr. Whynot advised that the has no further applications for that week at this time. Mr. Potter confirmed the same. Mr.

Hodgson advised that at this time he has no further applications for that week. If that changes he will follow the existing filing dates. [ 25 ] At an August 7, 2014 set of case conference minutes all defence counsel indicated an intention to file an O’Connor application but stated they were on hold due to the emergence of the “load files” issue. [ 26 ] In the September 24, 2014 minutes of a case management conference under the heading “The October 20 - 24, 2014 Dates” appears the following: This week was initially reserved for what the Court understood to be an O’Connor application. I advised counsel and Mr.

Potter that I expect all outstanding applications to be filed for that week. Counsel agreed to discuss filing dates, etc. among themselves. I also advised that not proceeding with a motion on that week could very well limit the possibility of a later hearing date. Two applications proceeded on October 22 -24, 2014 and they were not O’Connor applications. My comments on that approach appear in the 2014 NSSC 392 decision and in the recusal materials. Under the heading “Additional Issues” I wrote “we should have a discussion about filing dates for the

section 11(

b) applications.” No such discussions were held. [ 27 ] In the November 4, 2014 minutes of a case management conference under the heading “Section 11(

b) Application” appears the following: This application is to be heard November 24, 2014 for 2 weeks. Messrs. Potter and Clarke materials are due on November 10 th , Mr. Colpitts’ materials are due on November 17 th . The Crown will file on November 21 st . All transcripts, save for the last 2 / 3 appearances have been prepared. This discussion was entirely confirmatory given the absence of Mr. Colpitts / Mr. Hodgson. Under the heading “Future Applications” appears the following: Mr. Whynot advised there will likely be a Clarke application respecting O’Connor or abuse of process.

He anticipated any applications are likely to be advanced by all three defendants. The Court advised as follows. ∙ Counsel should not assume the Court will entertain motions that have previously been scheduled but not pursued. ∙ The Court will consider any applications that come forward and they may have to be heard during time scheduled for the trial. There are no applications scheduled for a hearing for November 24 th to December 5 th , 2014 save for this recusal motion. [ 28 ] The record of this prosecution discloses that a

section 11(

b) delay application was never far from the minds of the defence, the Crown and the Court. We have gone so far as to set dates and to explore the sharing of transcript costs. Much time has passed between the NSSC investigation and the laying of charges. Additionally, it has been 45 months since the indictment was preferred and there is still no application. Clearly this trial has been delayed beyond what is constitutionally acceptable. I believe a trial judge has a duty to all the players, and the public at large, to keep trials on track and to maintain as much efficiency as the process allows. The defence now responds indicating that the

section 11(

b) application must wait until after the O’Connor application. I do not see the merits in that submission. [ 29 ] The record has also discloses that an O’Connor application was never far from the minds of the defence, Crown and the Court. Over the last 18 months and after Mr. Gass’ April 30, 2014 testimony, it became apparent that the NSSC intended to withhold documents for various privilege reasons. The Court and the Crown encouraged the defence to bring on an O’Connor application in a timely manner.

Such an application is only now before the Court. [ 30 ] In 2013 NSSC 386 ( McNeil Application) Justice Hood’s issue was whether the Crown have an obligation with respect to the Nova Scotia Securities Commission materials. She responded to that question at paragraph 72: The Crown knew of the Securities Commission investigation and that the Securities Commission had information. The Crown admits there is relevant information in the Securities Commission’s files. Accordingly, the Crown had an obligation to inquire and attempt to obtain that information. I find that it breached that obligation.

If the NSSC materials had been acquired by the Crown then they would have to be vetted by the Crown and disclosed as first party disclosure pursuant to Stinchcombe. This process would not attract privileged or irrelevant materials which would have to be the subject of an O’Connor application. In fact Justice Hood concluded her remarks as follows: It appears some information is not included in those files and, if Blois Colpitts seeks that information, an O’Connor application is the optionavailable to him.

Over the past several months the defendants received all non-privileged, relevant materials from the NSSC. [31] I take the view that the words attributed to me in this application do not result in an apprehension of bias when applied to Justice deGranpré’s language in Committee for Justice and Liberty.

I take the further view that these phrases would be perceived as efforts to manage thistrial in a way that respected the defendants fair trial rights including their right to make full answer and defence. [32] Since January, 2014 I have been extremely concerned with a number of factors that affect trial fairness, efficiency and management. • The alleged acts occurred over a dozen years ago. • The indictment was preferred on March 17, 2011. • This trial was already adjourned once based primarily on delays in the production of NSSC materials. • Substantive and important applications were being discussed but never materialized despite the shortage of time before trial. • The availability of Mr.

Colpitt’s counsel given his trial commitments in Ontario. • Scheduling into 2015. [33] On February 15, 2014 the Court was having difficulty scheduling the adjournment application before the start of the trial on April 2nd. I directed all to appear on a Saturday at which time I commented as follows: There’s a point in time where I’m going to have to just step up to the plate and say this is the way it’s going to be. I don’t want to go there. That’s why I want to give every opportunity. …and we’ve just about wrung every possibility out of this docket that we possibly can.

On a teleconference on August 7, 2014, when frustrated by scheduling obstacles I stated as follows: When I read the materials, the letters that come before me, it’s not lost on me that there’s a sharp edge at play in this prosecution.

And I don’tsay that directed at any one person, but I think we really have to take a step back and say, “what can we do to make this go forward in a positiveway that doesn’t compromise the rights of the accused to a fair trial and their ability to make full answer and defence.” This kind of language adds context to the quotes cited by the applicants in support of this recusal motion. The quotes cited by the Court reflectsfrustration with the defendant’s approach to procedural/scheduling issues and not to substantive issues. [34] Judges cannot be criticized for reasonable attempts to control the process. In R. v.

Hodson, 2001 ABCA 11 Justice McClung stated that “a no-nonsense judge” can enter the arena for the purpose of insisting that counsel move the case forward. In R. v. Baccari, 2011 ABCA 205, Justice Costigan stated that trial judges can participate in the legal debate, state preliminary views and challenge counsel’s position and that such does not create a perception of bias. He further stated at paragraph 24: [24] During argument, trial judges are not precluded from commenting on evidence or attempting to focus the argument on issues ofparticular concern to the trial judge.

Give and take between a trial judge and counsel may be robust but observations made by a trial judgeduring argument are not pronouncements: R. v. Hodson, 2001 ABCA 111 , 281 A.R. 76 at paras. 33 and 35. A trial judge is notprecluded from voicing concerns about the evidence. Nor is a trial judge precluded from directing counsel’s attention to the real issues in thecase. Trial judges are not expected to be mute manikins: R. v. W.F.

M. (1995), 1995 ABCA 244 , 169 A.R. 222 (C.A.) at para. 10. [35] Caselaw directs that judges facing a recusal motion should not err on the side of caution as such does not reflect the standard that must be met for

disqualification. In Lesiczka v. Sahota, Sahota et al., 2007 BCSC 479 Justice Groves commented as follows: The importance of judges not hastily recusing themselves when the matter of bias is raised is emphasized in several decisions of this Court. Thebasis for this position is well set out by Boyd J. in Middelkamp v. Fraser Valley Real Estate Board, [1993] B.C.J. No. 2965 at ¶ 24-26 (S.C.)(QL), aff’d (1993), (BC CA), 83 B.C.L.R. (2d) 257 (C.A.): Finally, Mr.

Rankin has submitted that even if there are no grounds for disqualification I ought, nevertheless, to disqualify myself since it willnow be impossible for me as the trial judge to hear the plaintiffs, case with fairness and impartiality... I cannot accede to such an argument since to do so, in my view, would establish a very dangerous precedent in these courts. In effect, I would beinviting disgruntled, unhappy litigants or their counsel to make whatever allegations they wished, in support of an application for the judge todisqualify himself or herself.

If the allegations failed to provide a proper foundation for a finding of bias or a reasonable apprehension of bias,the litigant could nevertheless take comfort in the knowledge that the mere making of the allegations would, by their very nature, taint theprocess and force the disqualification of the judge. This very danger was recognized by Chief Justice McEachern, C.J.B.C. in G.W.L. PropertiesLimited v. W.R.

Grace & Company of Canada Ltd. (1992), (BC CA), 74 B.C.L.R. (2d) 283 (B.C.C.A.) where he said: A reasonable apprehension of bias will not usually arise unless there are legal grounds upon which a judge should be disqualified. It is not quiteas simple as that because care must always be taken to insure that there is no appearance of unfairness. That, however, does not permit the courtto yield to every angry objection that is voiced about the conduct of litigation.

We hear so much angry objection these days that we must becareful to ensure that important rights are not sacrificed merely to satisfy the anxiety of those who seek to have their own way at any cost or atany price ... It is tempting for a trial judge, in circumstances such as those at hand, to yield to the disgruntled litigant or to his or her counsel. But to do sowould be to ignore and abandon the rights of the many litigants in this action, who have thus far participated in almost four months of trial. Mypublic duty is to sit and continue to sit fairly and impartially and see this trial to its conclusion.

I am confident that can be done in anatmosphere of goodwill, of fairness and impartiality. [36] In addition to being the trial judge I was also appointed to be case management judge pursuant to

section 551.1 of the Criminal Code.

Section 551.2 defines the role of a case management judge as follows: 551.2 The case management judge shall assist in promoting a fair and efficient trial, including by ensuring that the evidence on the merits ispresented, to the extent possible, without interruption.

Section 551.3 lists the powers that a case management judge possesses. The

section states: 551.3

(1) In performing his or her duties before the stage of the presentation of the evidence on the merits, the case management judge, as atrial judge, may exercise the powers that a trial judge has before that stage, including (

a) assisting the parties to identify the witnesses to be heard, taking into account the witnesses’ needs and circumstances; (

b) encouraging the parties to make admissions and reach agreements; (

c) encouraging the parties to consider any other matters that would promote a fair and efficient trial; (

d) establishing schedules and imposing deadlines on the parties; (

e) hearing guilty pleas and imposing sentences; (

f) assisting the parties to identify the issues that are to be dealt with at the stage at which the evidence on the merits is presented; and (

g) subject to

section 551.7, adjudicating any issues that can be decided before that stage, including those related to (

i) the disclosure of evidence, (ii) the admissibility of evidence, (iii) the Canadian Charter of Rights and Freedoms, (iv) expert witnesses, (

v) the severance of counts, and (vi) the separation of trials on one or more counts when there is more than one accused. Clearly it is the role of the case management judge to manage the trial process and to ensure that the trials are conducted in an efficient and fairmanner. Sometimes those goals require stern language and a strong shoulder. [37] Argument has been advanced that my recusal would make things so much better for everyone involved. Such an approach by a trial judge is adopting the path of least resistance. In Button v. Jones, (ONSC) Justice

Hambly offered the following analysis starting at paragraph 24: “Although my immediate reaction to the motions brought by Mr. Wunder, Q.C. and Mr. Brock, Q.C. was to recuse myself, I felt it was my duty to hear and decide these motions. I found support for this approach in Berkeley Administration Inc. v.

McClelland (1990), 17 F.S.R. 565 (Q.B.), where when faced with a recusal motion Justice Wright stated, at page 571: ‘I should report, as a matter purely of dispassionate observation, that the immediate reaction upon the receipt of such an application is a strong inclination to accede to it without further ado rather than continue to try an action where one party has decided he is not going to receive a fair hearing.

A conscious effort of will is necessary, as I have now discovered, to bring oneself to examine the principles governing such applications and to consider, as dispassionately as I may, where the duty of a judge lies when faced with such an application.’” [25] I share the view of these very able and experienced trial judges that hearing these motions is difficult. The natural reaction is to get the issues before another judge or in the alternative to allow the recusal motion without detailed analysis. [26] This is not the proper approach.

This results in another judge inheriting a case without the benefit of knowing its history. What the case law requires is that the trial judge hear full argument on the recusal motion and do the best that he can to apply the law to the facts and to decide the case on its merits. [ 38 ] The presumption of impartiality can only be displaced by cogent evidence. The defendants allege bias/apprehension of bias in three specific areas: (1) pre-judged the application pursuant to s. 11(

b) of the Charter by finding as a fact that the defendants have purposefully delayed proceedings for s. 11(

b) purposes and attributing, in advance of any evidence or submissions, a period of delay to the defendants; (2) impugned the credibility of the defendants prior to any testimony they may be required to give to demonstrate prejudice resulting from the lengthy delays in both charging the defendants and bringing the matter to trial; and (3) pre-judged both the appropriate procedure and the merits of the O’Connor application that will be required to obtain further materials from the NSSC by concluding that the defendants do not have a bona fide purpose in seeking these materials. [ 39 ] I will address the

section 11(

b) issue first. There is no

section 11(

b) application before this Court at this time and the trial proper starts in one month. It has been just short of four years since the indictment was preferred. The delay to date is significant and this Court recognizes the time requirements of such an application. Additionally the defendants advised the Court that their delay application will include pre-charge delay and that will increase the time and resources required to resolve the issue.

Also obvious to the Court was the need to resolve this issue before the trial as the remedy for unconstitutional delay is a staying of the charges. [ 40 ] Justice de Grandpré’s test is made up of a number of factors. • The apprehension of bias must be a reasonable one; • Held by reasonable and right minded persons; • Applying themselves to the question and obtaining thereon the required information. The test to be applied is an objective one and it is not based on the views of the litigants.

The reasonable person being queried on the issue must be an informed person, with knowledge of all the relevant circumstances, including the traditions of integrity and impartiality that form part of the background and essence of the Canadian judiciary ( R. v. Winsor, 2014, CanLII 16198 (NLPC)). [ 41 ] I find that the “reasonable” person, fully informed would not conclude that I have pre-judged any future application.

The reasonable person, with a full history of this file, would conclude the cited language was an effort to motivate the defence to bring their applications in advance of the January 12, 2015 trial date. After all this trial was already once adjourned. I believe I have a duty to protect the accused persons’ cases from entering the realm of unconstitutional delay. [ 42 ] The defendants argue that I am attributing delay to them and that such suggests pre-judging the issue. There have been no Crown applications in 2014. The Court has continuously offered extra weeks and resources if that would move things along.

There is no cogent evidence that would displace the presumption of impartiality in respect to any

section 11(

b) application the defendants may choose to make. [ 43 ] The second assault on my language relates to my October 31, 2014 ruling ( 2014 NSSC 392 ) and in particular the following passages: • There was absolutely no good reason for the defendants to be allowed to circumvent O’Connor ”; • “the defendants have an alternate purpose in proceeding as they have”; • “the defendants’ approach amounts to an ‘end run’ around O’Connor and is driven by

section 11(

b) considerations”; and • “the defendants’ refusal to return the hard drive is another attempt at the ‘end run’ around O’Connor ”. Also challenged are my words spoken at a case management conference held on November 10, 2014: I’ve certainly been speaking to you people on a regular basis about the scheduling of these applications and I think my decision of the 31 st had a message in it and that is that we are proceeding as scheduled. And if you bring an 11(

b) application, we’ll be doing it at that time.

If there are other applications, I’m not sure we’re going to be able to accommodate you without encroaching on the trial dates. That’s a little more palatable, given that we are without a jury. But nobody should make any assumptions that I’m not going to be sitting here on the 24 th of November and I’m going to be sitting here on the 12 th [of January], ready to go and that’s the way it’s going to be. And if you want to make applications to adjourn anything, I suspect that you better make them pretty soon so that I can deal with them promptly.

The defendants have not made an application to further adjourn this trial. [ 44 ] I find that the “reasonable” person, fully informed would not conclude that the above phrases amount to bias or an apprehension of bias. The reasonable person would have to be aware of the events of the past several years. They would also have to be aware that matters must make it to trial “within a reasonable time” as per

section 11(

b) of the Charter . They would also have to be familiar with the options available to counsel to cause production of third party records. I conclude the “reasonable” person would see the cited phrases as the Court’s efforts to motivate the defendants to bring their applications against the NSSC at times that did not threaten these very late trial dates. [ 45 ] The production of third party records has been on the table since the beginning of this prosecution. An O’Connor application is the only process that can produce third party relevant privileged documentation.

In O’Connor the Supreme Court of Canada commented on the appropriate process required to address third party records as follows: Given that there is no duty on third parties to disclose, it has been suggested that s. 698 of the Code provides the basis upon which a court may order production of third parties' private records. In particular, ss. 698 and 700 authorize the issuance of a subpoena ad testificandum or a subpoena duces tecum to any person that is likely to give material evidence.

With respect, however, I believe that this argument rests on a misunderstanding of the nature of the subpoena powers in s. 698. Although a subpoena duces tecum requires that a witness who is the object of the subpoena bring the requested documents into court, the subpoena does not automatically call for an order requiring the documents to be produced to the court for inspection, let alone to the defence. Production will only be ordered if the documents are likely to be relevant and if production is appropriate, having regard to all of the relevant considerations.

In exercising its discretion to order production, the court must, of course, have regard to the Charter rights of the accused and the other interests at stake, including any claims of privilege or a right to privacy which the subject or guardian of the records might successfully assert in respect of those documents. Only after the applicant displaces the procedural and evidentiary burden to show that materials in the hands of third party are “likely relevant” and that production is appropriate does the Court have the ability to issue an order compelling third-party production.

Put differently, if the applicant fails to discharge these burdens, the O’Connor application is dismissed and the Court has no ability to grant relief. [ 46 ] R. v. McNeil, supra , bridges the gap between first party disclosure and third party production.

Justice Charron summarized McNeil at paragraph 15: As I will explain, records relating to findings of serious misconduct by police officers involved in the investigation against the accused properly fall within the scope of the “first party” disclosure package due to the Crown, where the police misconduct is either related to the investigation, or the finding of misconduct could reasonably impact on the case against the accused. The Crown, in turn, must provide disclosure to the accused in accordance with its obligations under Stinchcombe .

Production of disciplinary records and criminal investigation files in the possession of the police that do not fall within the scope of this first party disclosure package is governed by the O’Connor regime for third party production. It seems obvious to me that the defences’ approach was based on the Court’s inherent jurisdiction, an approach that if successful, would not result in the production of privileged documentation.

I cite the Crown’s quote page 15 of its motion brief: Allowing the defendants to determine when they wish to bring a motion that has been at issue for three years robs this Court of its control over its own process. This lack of diligence by the accused is a sufficient basis to deny this request and sufficient justification to refuse to permit them to bring the application for production at all.

At some point this Court must focus on bringing this matter to trial and not continue to waste judicial resources to explore alternative methods to obtain production when the defendants continue to ignore the most obvious route based presumably on a lack of evidence to support their request. This characterization accurately describes the frustration the Court felt when it attempted to move the case forward. [ 47 ] Additionally, the Court expressed concern about the time it would take to complete the O’Connor application. The amount of documentation measured in the thousands of pages.

Notices would have to be given to many individuals and organizations. Issues of privilege would have to be vetted. The language cited would be viewed by the reasonable person as an effort by the Court to move matters along. After all it has been almost four years since the indictment was preferred. Once again I find there is no cogent evidence that would displace the presumption of impartiality in respect to any O’Connor application.

These words represent the Court’s direction that “we can’t afford to waste time.” [ 48 ] The defendants argue that my conduct/language impugned their credibility, and as such, I should recuse myself. Specifically Mr. Garson stated at page 30 of his motion brief:

On the

section 11(

b) application, the defendants will be required to produce evidence as to the actual prejudice the pre-charge delay has caused them. Your finding that the defendants have been driven by 11(

b) considerations is a finding of fact that the defendants have been purposefully dragging out the proceedings which undermines any claim to privilege they may advance before even beginning to produce this evidence. Accordingly, to succeed the defendants must start by attempting to persuade you of their credibility. With respect I do not accept this submission. The defendant’s credibility is not in issue now and has never been the subject of comment by this Court. All phrases cited by the applicants are in response to their litigation strategy which had the potential to sidetrack the trial.

At no time has this Court considered the credibility of Messrs. Clarke, Colpitts and Potter. I find that the reasonable person would not conclude that any of my words impugned the defendant’s credibility. [ 49 ] For the reasons cited herein I dismiss this application for recusal. Coady, J.