R v Hahn, 2018 SKCA 73

Court of Appeal for Saskatchewan Docket: CACR2664 Citation: R v Hahn , 2018 SKCA 73 Date: 2018-08-31 Between: Christopher Richard Hahn Appellant And Her Majesty the Queen Respondent Before: Jackson, Herauf and Schwann JJ.A. Disposition: Appeal dismissed Written reasons by: The Court On Appeal From: 2013 SKQB 295, 2014 SKQB 76 and J 19/12, Saskatoon Appeal Heard: December 14, 2017 Counsel: Peter Thorning for the Appellant Dean Sinclair, Q.C., for the Respondent The Court I. Introduction [ 1 ] Mr.

Christopher Hahn was charged with the offence of criminal harassment, contrary to s. 264 of the Criminal Code , RSC 1985, c C-46. The charge stated that he, over a two-and-a-half year period from October 21, 2009, until April 21, 2012, knowingly or recklessly harassed Mr. Justice R. Shawn Smith by watching or besetting his workplace. Justice Smith is (and was at the time) a judge of the Court of Queen’s Bench for Saskatchewan. Mr. Hahn elected to be tried by a judge and jury. [ 2 ] During the course of what turned out to be Mr.

Hahn’s first jury trial, he held up a poster in the presence of some members of the jury depicting an image that could have been considered inflammatory. A mistrial was declared. [ 3 ] His second jury trial resulted in a conviction. He was sentenced to 17 months of incarceration, less 190 days of pre-sentence credit, plus 3 years of probation. He appeals his conviction and sentence. [ 4 ] The trial judge for both of Mr. Hahn’s jury trials was a judge of this Court, Mr. Justice Ralph Ottenbreit, who was sitting as a judge of the Court of Queen’s Bench for that purpose. Mr.

Hahn had counsel for his first jury trial, but he represented himself at his second. At the second trial, Ottenbreit J.A. appointed an amicus curiae for the Court, Mr. Kevin Hill, who is (and was at the time) a lawyer entitled to practice before the courts of Saskatchewan. [ 5 ] Prior to his first trial, Mr. Hahn made a number of pretrial applications to Ottenbreit J.A. Mr.

Hahn appeals one decision made by Ottenbreit J.A. refusing to issue a subpoena compelling the attendance of the present Chief Justice of the Court of Queen’s Bench to testify ( R v Hahn , 2013 SKQB 295 , 428 Sask R 61 [ Subpoena Decision ]) and another decision refusing to order a stay of proceedings ( R v Hahn , 2014 SKQB 76 , 462 Sask R 1 [ Stay Decision ]). Mr.

Hahn also submits that his conviction should be set aside on the basis that Ottenbreit J.A. should not have declared a mistrial with respect to the first trial and because of an omnibus ground of appeal, alleging trial unfairness, with respect to several issues. [ 6 ] For the following reasons, we dismiss Mr. Hahn’s appeal from the Subpoena Decision , the Stay Decision and from his conviction and sentence. II. Background [ 7 ] This background is taken from the testimony at the second trial and is uncontested. [ 8 ] Events began in 2009 when Mr.

Hahn perceived that Smith J. had treated him unfairly in Family Court Chambers by refusing to compel Mr. Hahn’s former partner to answer the telephone and provide the access to his son that had been granted to him. The Chambers hearing took place on May 13, 2009 [2009 Chambers Hearing], which is the only occasion that Mr. Hahn appeared before Smith J. [ 9 ] After the 2009 Chambers Hearing, Mr. Hahn affixed posters critical of Smith J., on two separate occasions, at locations in the Court of Queen’s Bench parking lot. In the first incident, Mr. Hahn posted a letter he had written to Smith J. dated August 2, 2009.

The second poster was based on a similar letter dated August 5, 2009. Both letters made offensive comments about Smith J. The sheriff in charge of the building and grounds called the police to advise them about the posters. Other evidence indicated that Mr. Hahn had entered a courtroom on May 20, 2011, when Smith J. was presiding, and attempted to take his photograph. [ 10 ] On June 3, 2011, Mr. Hahn approached Smith J. in an alley behind the courthouse during the lunch hour. Justice Smith happened to be with other judges. One of the judges was Popescul J., as he then was. Mr.

Hahn touched Smith J.’s shoulder, took a picture of him and advised him he was going to use the picture to make a poster because Smith J. had ruined his life. He then followed

the judges to the restaurant where he spoke again to Smith J., blaming him for the difficulties his son was presently experiencing and saying he would settle with him legally. In retreating, Mr. Hahn said something along the lines of “you will hear from me” or “this isn’t the last you’ve heard of this”. [ 11 ] In early August of 2011, a deputy sheriff found additional posters and made a video of Mr. Hahn’s attempt to put up other posters. The posters were affixed to a door, the garage doors and a window of the courthouse.

The posters had a picture of Smith J. and again made offensive comments. [ 12 ] On August 30, 2011, Sgt. Jorgenson, of the Saskatoon Police Service, and a deputy sheriff employed by the Government of Saskatchewan met with Smith J. At that time, Smith J. asked that a message be relayed to Mr. Hahn that the postering should stop. [ 13 ] On October 25, 2011, the deputy sheriff saw Mr. Hahn at the courthouse. The deputy sheriff advised Sgt. Jorgenson, who proceeded to have a conversation with Mr. Hahn near the courthouse. The substance of this conversation forms one of Mr.

Hahn’s grounds of appeal. [ 14 ] On December 16, 2011, Mr. Hahn filed an affidavit for an upcoming motion in his ongoing family law matter. The supporting affidavit referred to Smith J. While Smith J. was not scheduled to hear the particular application, the court material was shown to him. As a result, on December 19, 2011, Smith J. sent a memorandum to the outgoing Court of Queen’s Bench Chief Justice, Laing C.J., and provided a copy to the incoming Chief Justice, Popescul J., who would assume his new post on January 1, 2012, and to the judge hearing the motion. [ 15 ] Justice Smith’s memorandum described Mr.

Hahn as having a “stream of troubled consciousness” and as engaging in “vitriol” directed at him. According to the testimony of Smith J., he prepared the memorandum for informational purposes so the judge hearing the motion would develop “a strategy … to deal with this affidavit”. [ 16 ] On December 28, 2011, Laing C.J. forwarded a memorandum to all of the judges of the Court of Queen’s Bench, advising them that Mr.

Hahn was an unhappy family law litigant: he hung about the back of the courthouse, he had trouble “controlling his emotions”, he had called judges “scumbags” and he had the “potential to be a dangerous person”. The memorandum also advised the judges that Mr. Hahn was a suspect in another incident. [ 17 ] On April 18 and April 20, 2012, a courthouse security video captured Mr. Hahn putting up additional posters. [ 18 ] On April 20, 2012, a senior Crown official wrote to Popescul C.J., as he now was, and advised him that the police intended to arrest and charge Mr. Hahn.

The Crown official advised that the communication was being made for “informational purposes” as Mr. Hahn’s actions involved a member of his Court, Smith J. [ 19 ] Mr. Hahn was originally charged with one count of besetting or watching the workplace of Smith J., a justice system participant, with the intent to provoke a state of fear in him, contrary to s. 423.1(1) (

b) of the Criminal Code [the Intimidation Charge]. III. Procedural History [ 20 ] After the police charged Mr. Hahn with the Intimidation Charge, they took him into custody. A judge of the Provincial Court of Saskatchewan held a bail hearing on May 2 and 3 of 2012, and ordered his detention. Mr. Hahn applied for a review of that decision, pursuant to s. 520 of the Criminal Code , which Popescul C.J. heard on June 21, 2012. In written reasons, Popescul C.J. concluded that Mr.

Hahn had failed to discharge the onus upon him to show why he should be released: Subpoena Decision at paras 5–6 and Stay Decision at para 3. [ 21 ] Before the preliminary inquiry commenced, the Crown laid an additional charge of one count of knowingly or recklessly harassing Justice Smith contrary to s. 264 of the Criminal Code [the Harassment Charge]. On August 22 and 23 of 2012, a judge of the Provincial Court held a preliminary inquiry and discharged Mr. Hahn on the Intimidation Charge, but committed him to stand trial on the Harassment Charge.

At a further bail hearing, held on August 27, 2012, a Provincial Court judge released Mr. Hahn on his own recognizance on the new charge. [ 22 ] On October 2, 2012, Ottenbreit J.A. was assigned the task of presiding over Mr. Hahn’s jury trial. Mr. Hahn, who was at this point represented by counsel, brought two applications, which were heard by Ottenbreit J.A. Under the main application, Mr. Hahn sought a stay of proceedings of the Harassment Charge on the basis that there was a reasonable apprehension that Popescul C.J. was biased when he heard Mr.

Hahn’s bail review application pertaining to the Intimidation Charge such that the Harassment Charge should be stayed. In support of that application, Mr. Hahn sought to subpoena Popescul C.J. [ 23 ] Justice Ottenbreit heard the subpoena application first ( Subpoena Decision ). In outlining the positions of the parties, Ottenbreit J.A. noted the questions that Mr. Hahn intended to ask Popescul C.J.: [15] These questions included: (

i) Did he receive and review the memos from then Chief Justice Laing and Justice Smith in 2011 prior to his appointment as Chief Justice? (ii) Did he receive and review the emails? (iii) Did he have conversations with Justice Smith after April 24, 2012? (iv) Did he assign himself to the bail review after receiving the two memos and emails or after talking with Justice Smith?

(

v) What was the strength of the friendship between Justice Smith and the Chief Justice? Did they socialize? (vi) Did the Chief Justice receive any additional emails or memos concerning Mr. Hahn and did he respond? [ 24 ] After reviewing the law, Ottenbreit J.A. found that the testimony Mr. Hahn sought to elicit from Popescul C.J. was “referable to his role qua judge” (at para 44). Moreover, he held that the fundamental basis upon which Mr. Hahn sought to examine Popescul C.J. was to question him regarding the bail review proceedings.

In that regard, he held that “judges are absolutely immune from testifying respecting proceedings on which they have earlier presided” (at para 45). [ 25 ] With that decision rendered, Mr. Hahn renewed his application that he was entitled to a stay because of a reasonable apprehension of bias on the part of Popescul C.J., which had resulted in his application for review of his bail decision being dismissed ( Stay Decision ). The evidence that Mr. Hahn put forward in support of his application for a stay included the following: (

a) the December 19, 2011, memo from Smith J. to Popescul J. (and to Laing C.J. and Maher J.); and (

b) the December 28, 2011, memo from Laing C.J. to the judges of the Court of Queen’s Bench, which included Mr. Hahn’s picture. [ 26 ] An agreed statement of facts, tendered at the stay hearing, stipulated as follows: 1. At the time of the applicant’s June 21–22, 2012, Bail Review Application, Justice Smith and Chief Justice Popescul were friends. 2. At the time of the applicant’s Bail Review Application, Justice Smith and Chief Justice Popescul were both resident in the Judicial Centre of Saskatoon. Popescul C.J. had an office in the Court of Queen’s Bench located at 20 Spadina Cr.

East, and Smith J. had an office in the First Nations Bank Building located 224-4th Avenue South. 3. Justice Smith addressed his Memo dated December 19, 2011, to, inter alia , Justice Popescul (as he then was). The memo was handled by Smith J.’s secretary, and Smith J. had no reason to believe that the Memo did not reach Popescul J. 4. Following the Applicant’s arrest in April 2012, but before the Applicant’s bail hearing, Chief Justice Popescul contacted Justice Smith by telephone. Justice Smith was out of the country at the time.

Popescul C.J. contacted Smith J. to warn Smith J. of a statement that the Applicant had written following his arrest that potentially referred to the death of Smith J.’s son in a car accident and to prevent Smith J. and his wife from learning of the Applicant’s statement in the media. 5. Justice Smith received the memo written by Laing C.J. regarding the Applicant on December 28, 2011. ( Stay Decision at para 5(iii)) [ 27 ] Additional Crown disclosure included the following: [6] The Crown has also disclosed to Mr. Hahn the following: (

i) An email dated April 20, 2012, from Bruce Bauer, Senior Crown Prosecutor, to the Chief Justice, marked as Exhibit D1 on the application, which read: Chief Justice Popescul We have received a request for an opinion re charges against Christopher Hahn regarding his ongoing behaviour towards Mr. Justice Smith. Ms. Zerr, our Associate Regional Crown, is recommending that a charge be sworn. It is likely that the police will request a warrant for his arrest and make attempts to effect an arrest. The purpose of this email is simply for informational purposes as the actions of Mr.

Hahn relate to Justice Smith as a member of your Court. If you have any questions please contact me. Bruce Bauer Senior Crown Prosecutor Saskatchewan Ministry of Justice (ii) An email dated April 24, 2012, from Sonja Hansen, Q.C., Regional Crown Prosecutor, to the Chief Justice, marked as Exhibit D2 on the application, which read: Chief Justice Popescul To further update you with respect to criminal charges against Christopher Hahn, I write to advise that Mr. Hahn is scheduled to appear in adult custody docket for a show cause hearing tomorrow morning.

I wish to alert you to a portion of the warned statement of Christopher Hahn which may be adduced as evidence at the show cause hearing. In part, Mr. Hahn tells police, I had a dream the other night – After years of physical and emotional abuse made possible by bias Sask Family Court decisions, my teenage son, addicted to drugs and alcohol, gets into a car accident with another vehicle … which results with my son going to jail and the driver of the other vehicle, the judge’s son, going to the morgue. Life can be stranger than fiction. As before, the purpose of this email is simply for informational purposes.

Please feel free to contact me if you have any questions. Sonja Hansen, Q.C. Regional Crown Prosecutor Saskatoon Prosecution Unit (Italic emphasis in original) [28] Mr. Hahn filed an affidavit indicating that, before he applied for review of his denial for bail, he had not been provided withfull disclosure regarding the matters mentioned above.

He asserted that if he had known of the above documents, he would have beenable to assert a claim of reasonable apprehension of bias on the part of Popescul C.J. [29] Justice Ottenbreit found that the memos received by Popescul C.J. appeared to be “routine memos one would expect insituations where an issue of concern affecting the day-to-day administration of the court is concerned” (at para 49).

He held that not onlywas it “entirely appropriate for the Chief Justice to handle the matter himself, but necessary as well and in keeping with his duties as theChief Justice of this Court and the unusual nature of the situation” (at para 50). [30] Notwithstanding his findings in that regard, he proceeded to put “Mr. Hahn’s argument at its highest” in order to determinewhether Mr. Hahn had been “dealt with by the courts in accordance with the principles of fundamental justice” (at para 51).

Afterreferring extensively to the authorities (including R v Babos, 2014 SCC 16, [2014] 1 SCR 309 [Babos]; R v Regan, 2002 SCC 12, [2002]1 SCR 297; Canada (Minister of Citizenship and Immigration) v Tobiass, (SCC), [1997] 3 SCR 391 [Tobiass]; R vCurragh Inc., (SCC), [1997] 1 SCR 537; and R v Latimer, (SCC), [1997] 1 SCR 217), he held asfollows: [82] I have concluded that the constellation of facts disclosed by the evidence and the Charter breach, which I have assumed for thepurposes of this application, is not so egregious that the mere fact of the case going forward would be offensive to the integrity of justice.I cannot conclude that proceeding with the trial would lend judicial condonation to the conduct arising from the circumstances as awhole. (Stay Decision) [31] With the stay dismissed, Mr.

Hahn’s first jury trial began on May 26, 2014, only to end on May 30, 2014, in a mistrial.Mr. Hahn alleges, as a ground of appeal from his conviction at the second trial, that Ottenbreit J.A. should not have declared a mistrial,bringing his first jury trial to an end. Further background regarding the decision to declare a mistrial will be provided when Mr. Hahn’sground of appeal pertaining to it is considered. [32] Following the Stay Decision, Mr. Hahn applied to Ottenbreit J.A., asking that he disqualify himself as the trial judge in theupcoming jury trial.

Justice Ottenbreit dismissed this application: R v Hahn, 2015 SKQB 88. [33] Mr. Hahn’s second jury trial began on May 11, 2015, resulting in his conviction, and ultimately in his sentence on August 4,2015. IV. Grounds of Appeal [34] Mr. Hahn puts forward the following grounds of appeal: (

a) the trial judge erred when he quashed the subpoena, which then lead to a wrong decision with respect to the stay ofproceedings; (

b) the trial judge erred by not granting a stay of proceedings; (

c) the trial judge erred by ordering a mistrial with respect to the first trial; and (

d) the second trial was unfair. V. Analysis A. The Subpoena Ground of Appeal [35] Mr. Hahn puts forward this ground of appeal, not to attack his conviction directly, but so as to argue that Ottenbreit J.A. erredby refusing to issue the subpoena compelling the testimony of Popescul C.J. He asserts that if Ottenbreit J.A. had not erred in so refusing,he would have ultimately granted the stay of proceedings, which is the remedy that he seeks on appeal in relation to this ground of appealas well. [36] Mr.

Hahn’s principal argument alleging error in the Subpoena Decision is that Ottenbreit J.A. erred in his assessment of whatwas at stake in this case. He contends that the “defence was attempting to establish that bias existed at the highest level of the judiciary,and that he was detained, not because of the normal operation of law, but rather because the bail review judge [Popescul J., as he thenwas] was acting in a non-judicious capacity” (appellant factum at para 52).

He refers, in particular, to the phone call made byPopescul C.J. to Smith J., which is more fully described in paragraph 4 in the Agreed Statement of Facts (quoted above). He submits thatthe principles of judicial immunity do not apply in such a case or that they “must give way so that the defence can make full answer anddefence” (at para 54). In that regard, he cites Taylor v Canada (Attorney General), (FCA), [2000] 3 FC 298 (FCA)

at para 32 [Taylor], leave to appeal to the SCC refused, [2000] 2 SCR xiv. [37] This is such an astonishing argument that the Court is reluctant to address it in any detail for fear of giving any semblance ofcredence to it. While Mr. Hahn sought to cross-examine Popescul C.J. for the purpose of eliciting evidence that would, in Mr. Hahn’smind, show “bias existed at the highest level of the judiciary”, this is crude speculation at best – and, at most, a fishing expedition toavoid due process. There is not one shred of evidence to support the proposition that Mr. Hahn alleges.

Further, paragraph 32 of Taylorsupports the existence of an exception from the application of the principle of judicial immunity in circumstances that do not apply here. [38] We appreciate that Mr. Hahn relies on all of the evidence already reviewed in these reasons, plus the “new” evidence from histrial, which showed that Smith J. had spoken to a number of the judges in the Saskatoon Court House about the poster incidents (trialtranscript at T615), but the issue at Mr. Hahn’s trial was never whether the judges of the Court of Queen’s Bench knew about theincidents. Mr.

Hahn’s actions in putting up posters drew the judges’ attention to the incidents. Further, given the subject matter of theposters, it would be surprising if every judge at the courthouse were not kept fully informed, if for no other reason than to ensure theirsafety. But, none of this changes the law regarding judicial immunity. [39] In his rejection of Mr. Hahn’s arguments in support of a claim to have the subpoena issued, Ottenbreit J.A. canvassed therelevant authorities and correctly assessed the law.

Of those authorities, it is sufficient at this point to refer to MacKeigan v Hickman, (SCC), [1989] 2 SCR 796 [Hickman], only. On a special reference, a five-person panel of the Nova Scotia Court ofAppeal, including the Chief Justice of the province, quashed the murder conviction of Donald Marshall. In the course of delivering theirreasons for decision, the Court of Appeal commented adversely on Mr.

Marshall’s actions at the time of the death of Sandford Seale,saying he had contributed to his conviction and that “any miscarriage of justice was more apparent than real” (R v Marshall (1983), (NS CA), 57 NSR (2d) 286 (CA) at para 79). Mr. Marshall eventually received compensation for his lengthy incarcerationbut the Court of Appeal’s comments had an impact on the quantum of that payment. In due course, the government of Nova Scotiaestablished a Royal Commission to inquire into all matters relating to Mr.

Marshall’s wrongful conviction. [40] The Commission subpoenaed the five judges of the Nova Scotia Court of Appeal to testify, inter alia, as to the followingmatters: (

a) how the Chief Justice determined who would sit on the panel that would hear Mr. Marshall’s appeal (the panel included ajudge who had been Attorney General of Nova Scotia when Mr. Marshall was convicted of murder); and (

b) the composition of the record. The last issue concerned whether certain affidavits, impugning the character of Mr. Marshall, had been considered by the Nova ScotiaCourt of Appeal during their reasoning process. [41] Justice McLachlin, as she then was, with Gonthier and L’Heureux-Dubé JJ. concurring, held that judicial immunity is centralto the concept of judicial independence. To require a judge to testify before a civil body about how a particular decision had beenreached would be to “strike at the most sacrosanct core of judicial independence” (Hickman at 831).

All members of the Supreme Courtagreed on that point. The issue that divided the Supreme Court was whether the judges, and, in particular, the Chief Justice of the NovaScotia Court of Appeal, could be compelled to testify about how the Chief Justice determined who would sit on the panel that had heardthe reference inquiring into Mr.

Marshall’s wrongful conviction and what constituted the record considered by the panel. [42] Justice Cory, with whom Wilson J. agreed on this point, was prepared to draw a distinction between what he called“adjudicative privilege”, which he agreed was sacrosanct, and “administrative privilege”, which he saw as being “qualified and limited inits scope” (at 842) so as to allow the judges to be examined on the composition of the panel and the record considered by them. [43] Justice McLachlin would not permit the drawing of such a distinction.

In so far as these latter questions concerned the“administrative or institutional aspect of judicial independence” (at 832), they still came within the ambit of judicial independence andwere worthy of protection by the courts. In the result, neither the Chief Justice of Nova Scotia nor the judges of the Court of Appeal werecompellable to testify, such that the subpoenas compelling their attendance were quashed. [44] Justice Ottenbreit found as a fact that Mr. Hahn sought the subpoena to elicit evidence regarding matters of adjudication andof administration.

Thus, Hickman is a complete answer to this ground of appeal. It is dismissed. B. The Stay of Proceedings Ground of Appeal [45] Mr. Hahn’s first argument under this ground is that Ottenbreit J.A. placed on him the burden of proving “actual” bias, withreference to this paragraph: “Next, there is nothing in the comments or actions of the Chief Justice in his handling of the bail review ordecision which evinces a subconscious bias against Mr.

Hahn as a result of the receipt by him of either of the two memos and theircontents or the emails” (Stay Decision at para 85). [46] To suggest that this constitutes a finding that Ottenbreit J.A. held Mr. Hahn to a standard of proving actual bias misreads thedecision under appeal.

It also does not recognize that Ottenbreit J.A.’s decision, refusing to grant a stay of proceedings, is linked to hisdecision refusing to issue a subpoena to compel evidence from the Chief Justice of the Court of Queen’s Bench. [47] In the Subpoena Decision, Ottenbreit J.A. reviewed Wewaykum Indian Band v Canada, 2003 SCC 45, [2003] 2 SCR 259[Wewaykum], where the Court examined the conceptual underpinnings for an argument of reasonable apprehension of bias.

It isappropriate to allege an apprehension of bias as opposed to actual bias when the party alleging bias concedes that the judge is acting ingood faith and is not consciously relying on inappropriate preconceptions, but is nevertheless “unconsciously biased” (at para 65 inWewaykum, cited in the Subpoena Decision at para 35). In our view, the reference to subconscious bias in paragraph 85 of the StayDecision is a reference to this alternative basis upon which an apprehension of bias can be alleged.

[48] Further, throughout the Stay Decision, Ottenbreit J.A. demonstrated that he was addressing Mr. Hahn’s application for a stayon the basis of an allegation of apprehension of bias. For example, when Ottenbreit J.A. reviewed Mr. Hahn’s position, he said thefollowing: [10] In his written argument, Mr. Hahn submits that there was conscious bias on the part of the Chief Justice when he presided over hisbail review.

However, in oral argument he retreated from that position and asserted the probability that he was unconsciously biased or atthe very least a reasonable person properly informed would apprehend bias in all the circumstances (Wewaykum Indian Band v. Canada,2003 SCC 45 , [2003] 2 S.C.R. 259, at para. 66). Justice Ottenbreit understood fully Mr.

Hahn’s argument that a stay of proceedings was in order on the basis of an apprehension of biason the part of Popescul C.J. arising from his dismissal of the application for review of a judicial interim release decision of the ProvincialCourt. [49] Apart from alleging that Ottenbreit J.A. did not consider his arguments from the perspective of apprehension of bias asopposed to actual bias, Mr. Hahn makes a series of arguments challenging individual findings that Ottenbreit J.A. made leading to hisultimate conclusion that a stay was not in order. First of all, Mr.

Hahn submits it would not be “routine” for a senior Crown prosecutor todisclose part of the evidence against an accused to the Chief Justice of the Court of Queen’s Bench. Next, he also submits it would not be“routine” for the Chief Justice to then contact a judge, who had been the subject of a poster incident such as occurred here. [50] On this point, we do agree with Mr. Hahn that the use of the word routine might be misconstrued. It may have been preferableto use the words “proper” or “appropriate” but nothing turns on the use of the word routine.

In our view, it was appropriate for theCrown prosecutor to alert the Chief Justice of the pending charges and arrest. In light of the disclosure that he had received, it wasappropriate for the Chief Justice to contact Smith J. for his safety and that of his family. This is the point that Ottenbreit J.A. wasmaking. [51] Next, Mr. Hahn proceeds to challenge the eight reasons given by Ottenbreit J.A. for finding that a stay of proceedings was notin order.

In particular, he submits that Ottenbreit J.A. erred with respect to the seventh and eighth reasons given in support of hisdecision: [89] Seventh, the memos received by the Chief Justice predate the bail review by 6 months and contain only information aboutMr. Hahn’s family law matter. The memos do not appear to address any interactions between Mr. Hahn and Justice Smith vis-à-vis hischarges. … [90] Eighth, the emails sent from the Crown to the Chief Justice in April 2012 are both for informational purposes and out of courtesy tothe Court and do not involve the essential elements or details of the case.

Moreover, there was no response by the Chief Justice and heobviously declined to enter into a dialogue with the Crown about either of the emails. [52] In relation to the seventh reason, Mr. Hahn states that Ottenbreit J.A. erred by referring to the passage of time as a justificationfor not granting the stay of proceedings. About the eighth point, Mr. Hahn submits that the email did in fact contain direct references tothe details of his statement, which the Crown led at his trial. Further, he argues that it is not accurate to say there was no response fromthe Chief Justice.

Rather, he states that at the highest the most that can be said is that there was an acknowledgement of one email and anabsence of evidence of a response to the second. [53] While there may be some validity to these individual arguments, in our respectful view they do not address the issue, which iswhether the Stay Decision should be overturned. The resolution of that question depends more fundamentally on what Ottenbreit J.A.actually decided. [54] Mr.

Hahn’s arguments overlook the fact that Ottenbreit J.A. considered whether a stay of proceedings would be anappropriate remedy even if one assumed a reasonable apprehension of bias could be found. In concluding that a stay would not beappropriate, Ottenbreit J.A. reviewed the applicable case law and instructed himself that a stay could only be imposed in the clearest ofcases.

In that regard, he found there are two categories of cases where stays might be more assuredly granted, notably where theimpugned conduct fatally compromises an accused’s ability to make full answer and defence at trial and where the conduct is alleged tohave undermined the integrity of the judicial process. [55] Justice Ottenbreit correctly positioned the case before him in the second category.

He understood that he had to consider if, bypermitting the trial to proceed, his action in doing so would lend judicial condonation to the impugned conduct such that nothing short ofa stay of proceedings would adequately disassociate the justice system from it. The reasons of Ottenbreit J.A. are not reasons as towhether there was or was not an apprehension of bias, but rather they were directed to whether the impugned conduct was seriousenough to warrant a stay. [56] As Ottenbreit J.A. noted, Tobiass is directly on point.

In Tobiass, the Assistant Deputy Attorney General of Canada met withthe Chief Justice of the Federal Court regarding the delay in moving a particular extradition case forward, suggesting that it might bepreferable to proceed by way of a reference to the Supreme Court of Canada. The Chief Justice then met with the Associate ChiefJustice, who then took steps to move the case along more quickly. The Supreme Court held that (

a) the Chief Justice of the FederalCourt had acted inappropriately by speaking to the Associate Chief Justice (at para 75) and by giving an undertaking that all reasonablesteps would be taken to avoid a reference to the Supreme Court (at para 78), and (

b) the Associate Chief Justice had actedinappropriately by responding as he did to the Chief Justice’s intervention (at para 76). Specifically, the Supreme Court found that areasonable observer could not fail “at least to wonder whether the Government … had succeeded in influencing the Associate ChiefJustice to take a position more favourable to the Government’s interests than he would otherwise have done” (at para 78). The Courtwent on to say, “it was wrong and improper” to give an undertaking because “[w]hat is pertinent is to avoid delays, not to avoid appealsor recourse to higher courts” (at para 80).

In sum, the appearance of judicial independence had “suffered significantly” (at para 69).Notwithstanding these criticisms, the Court was not prepared to find a stay of proceedings to be the appropriate remedy. [57] Mr. Hahn seeks a remedy that the Supreme Court refused in plainer circumstances than existed here. In this case, even

assuming a reasonable apprehension of bias, Ottenbreit J.A. held that this is not one of the clearest of cases that would justify such adrastic approach to rectify the situation. We agree. [58] Appellate intervention is warranted only if the trial judge misdirected himself in law, committed a reviewable error of fact orrendered a decision that was so clearly wrong as to amount to an injustice. In that regard, reference should be made to Babos (at para 48)and Tobiass (at para 87). [59] Applying that standard of review, it is plain to us that Ottenbreit J.A. did not misdirect himself.

He did not commit areviewable error of fact or render a decision that was so clearly wrong as to amount to an injustice. Indeed, in our view, the reasons ofOttenbreit J.A. demonstrate a careful consideration of an argument that placed Mr. Hahn’s assertion at its highest in order to ensure thatMr. Hahn would be treated as fairly as possible. This ground of appeal must fail. C. The Mistrial Ground of Appeal [60] On the fourth day of his first trial, as the jury were exiting the courtroom, Mr. Hahn held up a poster showing him standingnext to a coffin with his legs shackled. According to the court clerk, Mr.

Hahn held up the poster as the last three or four jurors wereleaving. Subsequently, the jury passed Ottenbreit J.A. a note asking how they should interpret the matter in light of the fact that not all ofthem had seen it. [61] After hearing from Crown counsel and Mr. Hahn’s counsel, Ottenbreit J.A. declared a mistrial. He did so on the basis that hebelieved Mr. Hahn’s right to full answer and defence had been affected by the latter’s actions.

By holding up a poster, Ottenbreit J.A.concluded that the jury might “interpret it to be another poster, one in yet a long line of posters talked about by Justice Smith” (May 30,2014, first trial transcript at T212). [62] On appeal, Mr. Hahn seeks to set aside his conviction at the second trial on the basis that the mistrial should not have beendeclared. The underlying basis for putting forward this ground of appeal is that Mr. Hahn believes he would have been acquitted at thefirst trial because of the way the evidence at that trial had been presented.

Some additional background is necessary to address thisground of appeal. [63] In October of 2012, Mr. Hahn had a conversation with Sgt. Jorgenson. At the first trial, the Crown led Mr. Hahn’s statementsto Sgt. Jorgenson without a voir dire as to the voluntariness of the statement. Given the Crown’s decision in that regard, Mr. Hahn’scounsel advised Ottenbreit J.A. that he intended to lead the exculpatory portions of Mr. Hahn’s statement made to Sgt. Jorgenson, andwould be doing so with the consent of the Crown. [64] The relevant portion of that evidence begins with this question: Q: Okay.

What you didn’t elaborate on yesterday, was that Mr. Hahn also told you that “His intentions were not to harm or harassJustice Smith, but to let him know how upset he was by his decision”; correct? (May 29, 2014, first trial transcript at T329) [65] Sergeant Jorgenson agreed that while the quoted words may not have been verbatim, his report did include a statement madeby Mr. Hahn that he had no intention to harass the complainant. In further testimony, Sgt. Jorgenson agreed that Mr. Hahn had also toldhim that “he was checking at the courthouse to find out Smith’s

schedule of sittings, so he could try to avoid having him as judge in hisfuture appearances” (May 29, 2014, first trial transcript at T331). [66] At the second trial, Mr. Hahn did not have counsel. A voluntariness voir dire was conducted, and Sgt. Jorgenson’s evidencewas presented differently. Mr. Hahn’s cross-examination of Sgt. Jorgenson did not elicit the specific admission regarding Mr. Hahn’sintention not to harm or harass Smith J. [67] In opposition to this argument, Crown counsel submits that the matter is now moot.

The order for a mistrial was made in thecontext of an aborted trial that did not end with a conviction. Therefore, the Crown contends this Court lacks jurisdiction unders. 675(1)(

a) of the Criminal Code to review the lawfulness of the mistrial order. Section 675(1)(

a) reads: Right of appeal of person convicted 675(1) A person who is convicted by a trial court in proceedings by indictment may appeal to the court of appeal (

a) against his conviction (

i) on any ground of appeal that involves a question of law alone, (ii) on any ground of appeal that involves a question of fact or a question of mixed law and fact, with leave of the court of appeal or ajudge thereof or on the certificate of the trial judge that the case is a proper case for appeal, or (iii) on any ground of appeal not mentioned in subparagraph (

i) or (ii) that appears to the court of appeal to be a sufficient ground ofappeal, with leave of the court of appeal … . [68] We agree with counsel for the Crown. Mr. Hahn is not permitted to appeal the validity of the mistrial order from the first trialin the context of an appeal from his conviction at the second trial.

It is trite law to say that an appeal court can only hear appeals fromthose decisions that either Parliament or Legislature has decreed should be subject to appellate review. [69] In R v Holliday (1973), 1973 ALTASCAD 43 , 12 CCC (2d) 56 (Alta CA), the Alberta Court of Appeal held that adeclaration of a mistrial cannot be considered “a judgment or verdict of acquittal” (s. 676(1)(a)), with the consequence being that the

Court did not have the jurisdiction to hear an appeal from the Crown under s. 676 of the Criminal Code. Similarly, when a person isconvicted of a crime, s. 675(1)(

a) of the Criminal Code circumscribes the convicted person’s rights of appeal. A person who is convictedof a crime can appeal from his or her “conviction” only. A declaration of a mistrial is clearly not a conviction. The refusal to declare amistrial may be a ground of appeal under s. 675, if the person were ultimately convicted, but as a matter of logic no scenario exists wherea declaration of a mistrial could constitute a ground of appeal under s. 675, even if a right of appeal existed. [70] Mr.

Hahn now seeks to make the declaration of a mistrial, which was the outcome of the first trial, a ground of appeal in hisappeal from conviction on the second trial, but he is restricted to appealing his conviction, which is the outcome of the second trial.Further, s. 675(1)(

a) grants him a right of appeal alleging errors of law or fact that stem from a trial that resulted in his conviction, andnot from any prior trial. In short, this Court lacks the jurisdiction to consider whether the order for a mistrial should have been made ornot. D. Fair Trial Grounds of Appeal [71] Mr. Hahn raises three concerns relating to the fairness of his second trial. First, he believes that his full statement toSgt. Jorgenson was unfairly kept from the jury. Second, he argues that Ottenbreit J.A. did not provide sufficient assistance to him at thesecond trial.

Third, he submits that he was unjustifiably denied production of the audiotape of his appearance before Smith J. at the 2009Chambers Hearing. We will deal with each of these submissions in turn. 1. Sergeant Jorgenson’s statement [72] As mentioned earlier, Mr. Hahn believes that a portion of Sgt. Jorgenson’s statement was not presented to the jury at thesecond trial, notably, his exculpatory statement that, during his conversation with Mr. Hahn, the latter had said he did not intend to “harmor harass Justice Smith”. Relying on R v Rojas, 2008 SCC 56, [2008] 3 SCR 111 [Rojas], he argues that the whole of Sgt.

Jorgenson’sstatement, including its exculpatory portion, should have been put to the jury. [73] In Rojas, the Court stated the following about out-of-court exculpatory statements: [37] Of course, the general rule that excludes out-of-court exculpatory statements is not without exceptions. One such exception isrelevant here – the mixed statement exception.

Just as in England, it has long been established that where the Crown seeks to tender anaccused’s out-of-court statement which contains both inculpatory and exculpatory parts, it must tender the entire statement, and theexculpatory portions are substantively admissible in favour of the accused: R. v. Hughes, (SCC), [1942] S.C.R. 517, atp. 521. [74] While Mr. Hahn wishes that the trial had played out differently, the fact of the matter is that at the second trial, Crowncounsel did not attempt to elicit from Sgt. Jorgenson any statements made by Mr. Hahn. Crown counsel’s questioning of Sgt.

Jorgensonwas confined to what he had told Mr. Hahn, which was that he had warned him to stop what he was doing in relation to Smith J. andMr. Hahn appeared to understand that he might be charged with a crime if he did not stop. [75] We note, as well, that Mr. Hahn’s intentions or reasons in putting up the posters and in speaking to Smith J. was not anelement of the offence put to the jury. Rather, Ottenbreit J.A. put to the jury the elements of the charge as follows: (

a) Mr. Hahn watched or beset (invaded) the workplace of Smith J. between October 21, 2009, and April 21, 2012; (

b) Mr. Hahn had no lawful authority to do what he did; (

c) Mr. Hahn’s conduct harassed Smith J.; (

d) Mr. Hahn knew that his conduct harassed Smith J. or he was reckless or willfully blind as to whether Smith J. was harassed; (

e) Mr. Hahn’s conduct caused Smith J. to fear for his safety or the safety of anyone known to him; and (

f) Smith J.’s fear was reasonable in the circumstances. [76] We also note that, in cross-examination, Ottenbreit J.A. permitted Mr. Hahn to cross-examine Sgt. Jorgenson extensively.Mr. Hahn elicited from Sgt. Jorgenson his agreement that Smith J. did not consider himself to be in danger and nor did Sgt. Jorgenson –and this pertained directly to an element of the offence. He confirmed that Smith J. had never stated to Sgt. Jorgenson that he was fearfulof Mr. Hahn. Rightly or wrongly, Sgt. Jorgenson was also asked whether Mr. Hahn had told him that he (Mr.

Hahn) was putting up theposters as an exercise of freedom of speech only. Sgt. Jorgenson agreed. [77] There is no basis to this ground of appeal. 2. Assistance to Mr. Hahn as a self-represented litigant [78] Mr. Hahn submits that his medical condition required Ottenbreit J.A. to provide a greater level of assistance than mightnormally be given. For that proposition, he cites R v Phillips, 2003 ABCA 4, 172 CCC (3d) 285, aff’d 2003 SCC 57, [2003] 2 SCR 623. [79] In particular, in his factum, Mr.

Hahn asserts that Ottenbreit J.A. did not address his personal concerns about his health, whichhe expressed a number of times throughout the trial: 128. In this case, the Appellant will argue that the trial judge did not provide him with sufficient guidance, and in particular the Court didnot address the Appellant’s personal concerns, expressed a number of times throughout the trial.

• “I’ve been really sick lately” – See Transcript of Trial #2, Vol. 1, pg. T15, line 18. • “I’ve brought to Kevin Hill’s attention that I’ve been sick for the last few days. I’m prepared to go for this case. I’ve just been really really sick, and I didn’t know … I thought it was the side effects because I’m on these meds like hydromorphone, for example, and just basically for the record, it’s like hospital heroin. It’s because – it’s for my back and stuff and my neck and I’ve got – I’m on a number of different meds, as you know.

Like anyways, and last year, you – know what happened there, yea, and I was, like, complete out of it. “So I – you know, but I – I think I – I thought it was the side effects from that because it comes and goes, and – but it’s more so my stomach because it wasn’t that – because it couldn’t have been that now. I thought it was the side effects from the meds when I emailed Diane last night, but is not because it’s some else …” – See Transcript of Trial #2, Vol. 1, pg. T15, line 39 and following. • “Excuse me. I’m just not feeling good here.

I will – no, not now I don’t … I’ve just been drinking tons of water, man, because I’ve been … super sick” – See Transcript of Trial #2, Vol. 1, pg. T20, line 14 and following. • “Yeah. As I said, I’m not feeling well. My head’s – like just throbbing … I’m not feeling good at all” – See Transcript of Trial #2, Vol. 1, pg. T59, line 39 and following. • “So I can only do it – and once again, I’m sorry, I’m functioning on little sleep here and everything else” – See Transcript of Trial #2, Vol. 1, pg. T85, line 21.11. • “My throat is just killing me” – See Transcript of Trial #2. Vol. 1, pg.

T145, line 1. • “Hydromorphone makes me slow too” – See Transcript of Trial #2. Vol. 1, pg. T146, line #5. • “Yeah. Well, I’m feeling a lot better than last week … . I’m not on antibiotics, but (then cut off by the trial Judge)” – See Transcript of Trial #2. Vol. 4, pg. T671, line 30. • “I can’t think of it right now. I mean, I’m functioning on very little sleep here. I’ve got a wicked headache. I mean – … I’m not feeling good” – See Transcript of Trial #2. Vol. 4, pg. T696, line 2. • “Just give me a second, please. Today’s like the first day in two weeks I’ve had some energy back” – See Transcript of Trial #2.

Vol. 4, pg. T751 line 2. [ 80 ] As the above indicates, it is quite clear that Mr. Hahn was not feeling well during the trial. It is, however, also clear from the above excerpts that Mr. Hahn wanted the trial to proceed even though he was not feeling well. It is also important to underscore that Ottenbreit J.A. had appointed an amicus curiae , who was present throughout the trial. The amicus did not advise the Court that the matter should not proceed. [ 81 ] Further, Ottenbreit J.A. assured Mr. Hahn that there would be no problem taking breaks throughout the trial: see, by way of example only, T16–17 or T59–61.

He explained to the jury that there was nothing out of the ordinary with respect to the frequent breaks because it would allow him to provide reasonable assistance to Mr. Hahn, who was unrepresented (T188). Mr. Hahn was extended every courtesy, including the provision of a table and a place to work over the lunch hour (T62) and offered the services of the clerk to assist him in making photocopies and such matters (T220). When it appeared that Mr. Hahn might be discrediting himself before the jury, Ottenbreit J.A. took a short break (T84).

From the transcript of the trial, it may be observed that Ottenbreit J.A. worked with Mr. Hahn to ensure that he understood his rulings. For example, Ottenbreit J.A. would often make the same statement, many times, in order to ensure Mr. Hahn would be able to follow the required procedure. Crown counsel’s assertion in his written factum that Ottenbreit J.A. exercised the “patience of Job” is not misplaced. [ 82 ] There is no merit to this ground of appeal. 3. Production of the audiotape [ 83 ] During the cross-examination of Smith J., Mr.

Hahn believed he could challenge the credibility of Smith J. if he had access to the audiotape of his appearance before Smith J. at the 2009 Chambers Hearing. [ 84 ] Some further background is required to put this ground of appeal in perspective. It must be understood that the only aspect of Mr. Hahn’s application that Smith J. did not grant to Mr. Hahn at the 2009 Chambers Hearing was an order compelling his former partner to pick up the phone when Mr. Hahn called her in order to speak to their son. Mr.

Hahn believed that the reason why Smith J. did not grant him this relief was because he was biased against him. He alleged that Smith J. had learned that Mr. Hahn had been convicted of breaking into the Saskatoon Court House several years before the 2009 Chambers Hearing and this was the basis for his claim of bias. [ 85 ] In his cross-examination of Smith J. at the second trial, Mr. Hahn suggested that the former had been told about the breaking and entering offence during the 2009 Chambers Hearing.

Justice Smith testified that he could not recall if he had been informed of that fact at the hearing but, even if he had been, it would have played no

part in his decision regarding Mr. Hahn’s family law application. It was at that point that Mr. Hahn applied for production of the audiotape or a transcript of the 2009 Chambers Hearing. He explained that he wanted the material to prove that as soon as Smith J. found out about the courthouse breaking and entering conviction, he would not let him argue his case on the family law application. [ 86 ] After a brief adjournment, Ottenbreit J.A. dismissed Mr.

Hahn’s application to produce the audiotape, holding that it was not relevant and that the request, in substance, was an attempt to launch a collateral attack on the decision emanating from the 2009 Chambers Hearing. The trial then continued. [ 87 ] On appeal, Mr. Hahn argues that Ottenbreit J.A. erred by dismissing his application. He asserts that he was not collaterally

attacking the 2009 Chambers Hearing decision, but rather was seeking to challenge Smith J.’s credibility. The Crown, on the other hand, submits that Mr. Hahn’s request involved his seeking a further opportunity to complain about the merits of Smith J.’s decision. [ 88 ] In our view, the fundamental basis of Mr. Hahn’s concern, regarding the production of the audiotape, was not Smith J.’s credibility, but whether Smith J. correctly refused to make the requested phone order in the 2009 Chambers Hearing decision.

The content of the audiotape from that hearing was not relevant to the charge at hand (the Harassment Charge and Mr. Hahn’s defence thereof) and seeking the production of the audiotape was, in fact, a means of collaterally attacking the decision made during the 2009 Chambers Hearing. Thus, Ottenbreit J.A. correctly refused the production of the audiotape. [ 89 ] This ground of appeal must fail. VI. Conclusion [ 90 ] The appeal from the Subpoena Decision , the Stay Decision and the conviction are dismissed. [ 91 ] For greater clarity, while Mr.

Hahn originally appealed his sentence, no arguments were directed in his factum or in oral argument to a sentence appeal, which also stands dismissed. “Jackson J.A.” Jackson J.A. I concur. “Herauf J.A.” Herauf J.A. I concur. “Schwann J.A.” Schwann J.A.