R. v. Brown, 2013 ONSC 2529

CITATION: R. v. Brown , 2013 ONSC 2529 COURT FILE NO.: 12-3000114 DATE: 20130430 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: ) ) HER MAJESTY THE QUEEN - and - TIAVEN BROWN ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Beverley Olesko , for the Crown Hilary Dudding , for the Accused ) ) HEARD: April 10, 2013 reasons for ruling: mistrial application G.R. Strathy J.:

[1] Tiaven Brown came before me, to be tried with a jury, on charges related to the possession of three prohibited firearms andammunition, possession of heroin and cocaine for the purposes of trafficking, possession of proceeds of crime and breach of a probationorder. [2] On the third day of the trial, while evidentiary applications were being heard and before the jury had been empanelled, Mr.Brown brought an application for a mistrial. The application was dismissed with reasons to follow. These are my reasons.

Background [3] At the opening of court on Tuesday April 9, 2013, I advised counsel that I had just been told by those responsible for courtsecurity that a weapon had been found the previous day in Mr. Brown’s possession in the cells at the court house. I stated that I had noother information about the matter. I stated that I did not think it had a bearing on anything other than court security, and I did not expectsubmissions, but I felt it was something about which counsel needed to be aware.

As I advised counsel the following day, thecommunication I received came from the Judge in the Toronto Region with responsibility for matters pertaining to courthouse security. [4] I proceeded to give my ruling on an application argued the previous day. At the request of counsel for Mr. Brown, court wasadjourned to Wednesday April 10, when a second application was to be argued. Shortly after court adjourned, I was advised that counselwished to reconvene.

On doing so, defence counsel advised that she wished to consider the issue of whether the out-of-courtcommunication of the security issue could give rise to a reasonable apprehension of bias or could be prejudicial to the accused. Aftersome discussion, it was concluded that the issue would be addressed the next day. [5] On April 10, 2013, counsel for Mr. Brown brought an application for a mistrial. Submissions of the Defence [6] Ms. Dudding on behalf of Mr.

Brown submitted that the out-of-court communication to me concerning a security issueinvolving the accused breached his right to be present at his trial, was prejudicial to him, and gave rise to a reasonable apprehension ofbias. She submitted that any such communication to me should have been made in open court and in the presence of the accused. Sheacknowledged that there was no issue of actual bias and that I would be able to put the information out of my mind for the purposes ofthis trial.

She submitted, however, that a fair-minded person in the position of her client would have concerns that, “consciously orsubconsciously”, I might be affected by a communication made when Mr. Brown was not present. She relied on the axiom that “it is offundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done”: R. v. SussexJustices, Ex parte McCarthy, [1924] 1 K.B. 256 at 259. Ms. Dudding referred to several authorities on the subject of ex partecommunications, which I shall discuss below. Submissions of the Crown [7] Ms.

Olesko on behalf of the Crown submitted that the issue was whether the communication gave rise to a reasonableapprehension of bias. She submitted that the situation was not unlike other instances in which prejudicial information that comes before atrial judge is capable of being ignored. She said that a fair-minded person, knowing how the judicial system works and how judges canscreen out inadmissible evidence or information, would not have a reasonable apprehension of bias. Discussion [8] The submissions of counsel for Mr.

Brown touched on two principles: the right of an accused person to be present at his or hertrial and the principle that a judge must be impartial and free from any actual or reasonably perceived bias. [9] There is no doubt about the right of an accused person to be present at his or her trial—to see the entire process by which he orshe is tried and to see that the correct procedure is followed and that the trial is fair: R. v. Barrow, (SCC), [1987] 2S.C.R. 694 at paras. 20, 21; R. v. Laws, (ON CA), [1998] O.J. No. 3623 (C.A.).

There is also no doubt thatcommunication to or by the trial judge, outside the courtroom and in the absence of the parties, concerning the matters at issue, not onlyviolates this right, but can give rise to the perception that the judge’s impartiality is compromised.

[10] The case law relied upon by counsel for Mr. Brown illustrates these principles. In R. v. Laws, for example, there was a privatemeeting between the Crown and the trial judge in Chambers to discuss editing of the wiretap affidavit. In R. v. MacDonald, [1991] N.S.J.No. 416 (N.S.S.C. – App. Div.), after the evidence had been completed and before judgment was given, the trial judge had a unilateralcommunication with the prosecutor and made inquiries of a police constable who was actively involved in the investigation andprosecution of the charges. [11] The defence also referred to R. v.

Bertucci, (SK CA), [1984] S.J. No. 117 (C.A.). In that case, following theconviction of the accused on a charge of arson, a presentence report was ordered and the matter was adjourned for sentencing. In themeantime, an RCMP officer wrote a letter to the Chief Judge of the Provincial Court, containing “sensitive information about theaccused” which was then forwarded to the trial judge. The RCMP disagreed with the Crown’s position on sentencing and made its ownrepresentations to the judge.

The trial judge declared a mistrial, a decision that was upheld by the Court of Appeal—Tallis J.A., givingthe judgment, stated at para. 17: In this case, the prosecutorial misconduct, although not attributable to crown counsel, is of such a nature that the learned Provincial CourtJudge was left with no real choice. Quite apart from the position of the respondent, Mr. Bertucci, who faces a possible jail sentence of 14years for this offence, the circumstances are such that an objective Court-watcher would feel that the proceedings were so tainted that anew trial was mandated.

The failure to do so would be inconsistent with the rudimentary demands of fair procedure. We have here such afundamental breach or defect which inherently results in the appearance of a complete miscarriage of justice unless promptly corrected.This case also involves basic ethical issues of conduct by individuals involved in the administration of justice. The learned ProvincialCourt Judge immediately recognized that the integrity of our judicial system rests on both the reality and appearance of propriety. Hisjudgment displays a clear and commendable appreciation of this cardinal principle.

There can be no doubt that improper lobbyingwhether by letter or word of mouth could undermine confidence in the Court’s integrity, indeed, in the whole judicial system--especiallyif persons coming before the Court feel that senior police officials have the apparent right to communicate privately with the Court priorto the imposition of sentence. The rules to be followed in the sentencing process are set forth in R. v. Gardiner, supra, and should beobserved with scrupulous care by all involved in the sentencing process. [12] A somewhat similar situation arose in R. v. Burry, [1988] N.J.

No. 315 (S.C.), in which the provincial court judge discontinuedthe proceedings after the evidence had been completed but before argument, because he had received an out-of-court communicationconcerning a witness who had already testified at the trial. [13] In all these cases, the trial process was tainted because there was an attempt to influence the judge’s decision, on either liabilityor sentence, through communications that were made in the absence of the accused.

Put more generally, the communications related tomatters that vitally affected the interests of the accused with respect to issues that were before the court for adjudication. It seems to methat the distinction in this case was that the communication related to a collateral matter, albeit a matter that did not put the accused in agood light. The communication was entirely irrelevant to any issue before the court although it could have an impact on administrativeissues, such as whether the accused would be permitted to sit at the counsel table.

There was a potentially outstanding issue of whetherhe would be permitted to do so when jury selection began. [14] Turning to the second principle—reasonable apprehension of bias—the test to be applied is set out in the judgment of deGrandpré J. in Committee for Justice and Liberty v.

National Energy Board, (SCC), [1978] 1 S.C.R. 369. [T]he 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…[The test is] “what would an informed person, viewing the matter realistically andpractically—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 not decide fairly.” The grounds for this apprehension must, however, be substantial and I…refus[e] to accept the suggestion that the test be related to the“very sensitive or scrupulous conscience”. [15] This test, while expressed in dissent, has been consistently endorsed by the Supreme Court of Canada. As Cory J. stated in R. v.R.D.S., (SCC), [1997] 3 SCR 484 at para. 111, This test has been adopted and applied for the past two decades.

It contains a two-fold objective element: the person considering thealleged bias must be reasonable, and the apprehension of bias itself must also be reasonable in the circumstances of the case.…Furtherthe reasonable person must be an informed person, with knowledge of all the relevant circumstances, including “the traditions ofintegrity and impartiality that form a part of the background and apprised also of the fact that impartiality is one of the duties the judgesswear to uphold”. [16] It seems to me that an informed person, viewing the matter realistically, practically and with knowledge of the relevantcircumstances, would understand that a judge presiding over a criminal trial has a responsibility for the trial process, including thesecurity of the courtroom and the safety of all participants, including the accused and the public. [17] If those responsible for security in the courthouse believe that the trial judge needs to know certain information, I think that theinformed person would expect that the trial judge would be advised of that information without delay, relying on the trial judge to advisecounsel and the accused at the earliest opportunity, if that course of action is appropriate in the circumstances. [18] The same informed person would appreciate that a trial judge is frequently required to make rulings that exclude evidence that isrelevant and potentially prejudicial to the accused: see R. v.

H.(G.), (ON CA), [2002] O.J. No. 3635 (C.A.). Tomention a few examples, this can include reviewing the accused’s criminal record to keep from the jury convictions that would be undulyprejudicial, excluding a confession which, although inculpatory, was procured in circumstances that violate constitutionally-protected

rights, or excluding evidence that, while highly relevant, is simply too prejudicial to the accused.

In jury trials, we rely on the trial judge to screen such information and in judge-alone trials we accept that the trial judge can separate his or her functions and properly ignore evidence that is inadmissible. [ 19 ] I do not think that the hypothetical informed person, knowing the duty of a trial judge to ignore irrelevant, inadmissible or unduly prejudicial evidence or information, could reasonable think that the accused’s right to a fair trial would be affected by the disclosure of such information to the trial judge in the circumstances I have described. [ 20 ] In fact, counsel for Mr.

Brown makes it clear that I was entitled to receive the information about the security issue, but says that it should have been communicated in court. She implicitly acknowledges that the information itself could have been put out of my mind and that it would not impair her client’s right to a fair trial. [ 21 ] For these reasons I concluded that the out-of-court communication to me of unproven information irrelevant to the issues in the trial, would not affect trial fairness in any way, and was not ground for a mistrial. ___________________________ G.R. Strathy J. Released: April 30, 2013 CITATION: R. v.

Brown , 2013 ONSC 2529 COURT FILE NO.: 12-30000114 DATE: 20130430 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N:

HER MAJESTY THE QUEEN - and - TIAVEN BROWN reasons for ruling: mistrial application G.R. Strathy J. Released: April 30, 2013