Her Majesty the Queen v. Montoya, 2015 ONCA 786

Her Majesty the Queen v. Montoya

[Indexed as: R. v. Montoya]

Ontario Reports

Court of Appeal for Ontario,

MacPherson, Tulloch and Pardu JJ.A.

November 17, 2015

128 O.R. (3d) 425 | 2015 ONCA 786

Case Summary

Criminal law — Trial — Trial judge — Reasonable apprehension of bias — Trial judge reserving on s. 11(b) Charter application and hearing evidence of one Crown witness — Prior to ruling the following day accused discharging counsel and seeking adjournment to retain new counsel — Trial judge dismissing s. 11(b) application with reasons to follow and granted accused's adjournment request — Accused taking lengthy period to retain new counsel and judge hearing two more days of evidence prior to delivering reasons for dismissing application — Her reasons for dismissing application delivered when trial resumed 15 months later — Provincial courts' dockets very busy and judges not required to rule on s. 11(b) motions prior to hearing any evidence — Those circumstances not coming close to cogent evidence required to give rise to reasonable apprehension of bias.

The accused was charged with fraud over $5,000 and uttering forged documents. On the first day of the trial, the accused brought an application for a stay of proceedings on the ground that her right under s. 11(b) of the Canadian Charter of Rights and Freedoms to a trial within a reasonable time was infringed. The trial judge reserved her decision and, as there was still a half day of court time, she suggested that she hear the evidence of the main Crown witness, who was present when the s. 11(b) motion was heard. This witness had gone to Australia rather than attend the first trial date and a material witness warrant had been issued. The next day, the trial judge dismissed the application with reasons to follow. She delivered her reasons when the trial resumed 15 months later, after hearing two more days of evidence. The accused was convicted. She received a 12-month conditional sentence and was ordered to make restitution in the amount of $25,000. She appealed her conviction and sentence.

Held, the appeal should be dismissed.

The fact that the trial judge heard evidence from the main Crown witness before making her s. 11(b) ruling and delivered her reasons for that ruling 15 months later after hearing two more days of evidence did not give rise to a reasonable apprehension of bias. There was nothing in the reasons for her ruling that supports the suggestion that the ruling was coloured by the evidence she heard between dismissing the application and the day she delivered her ruling.

The trial judge did not fail to take the accused's ability to pay into account in making the restitution order.

Cases referred to

Cojocaru v. British Columbia Women's Hospital and Health Centre, [2013] 2 S.C.R. 357, [2013] S.C.J. No. 30, 2013 SCC 30, 336 B.C.A.C. 1, 445 N.R. 138, 2013EXP-1773, J.E. 2013-958, EYB 2013-222291, 357 D.L.R. (4th) 585, 51 Admin. L.R. (5th) 1, 1 C.C.L.T. (4th) 1, [2013] 7 W.W.R. 211, 44 B.C.L.R. (5th) 1, 226 A.C.W.S. (3d) 838; R. v. Biegus, 1999 CanLII 3815 (ON CA), [1999] O.J. No. 4963, 127 O.A.C. 239, 141 C.C.C. (3d) 245, 44 W.C.B. (2d) 477 (C.A.); [page426] R. v. Castro (2010), 102 O.R. (3d) 609, [2010] O.J. No. 4573, 2010 ONCA 718, 270 O.A.C. 140, 261 C.C.C. (3d) 304, 91 W.C.B. (2d) 224

Statutes referred to

Canadian Charter of Rights and Freedoms, s. 11(d)

APPEAL by the accused from the conviction entered on July 10, 2012 and the sentence imposed on November 28, 2012 by Bhabha J. of the Ontario Court of Justice.

Peter Thorning and Richard Diniz, for appellant.

Dayna Arron, for respondent.

1Endorsement BY THE COURT: -- The appellant, Elvira Montoya, was convicted of fraud over $5,000 and two counts of uttering forged documents for her role in assisting a "straw buyer" to obtain a mortgage. The mortgagee bank suffered a loss of $118,873 as a result of the fraud. The appellant was sentenced to a 12-month conditional sentence and ordered to pay $25,000 in restitution. She appeals her conviction on one ground and her sentence on one ground.

2On the conviction appeal, the appellant submits that the circumstances surrounding the trial judge's Canadian Charter of Rights and Freedoms s. 11(b) ruling gave rise to a reasonable apprehension of bias.

3On November 22, 2010, the day the trial commenced, the appellant brought an application for a stay of proceedings on the basis of unreasonable delay. The trial judge reserved her decision on the application. Because there was still a half day of court time and the first Crown witness was there, the trial judge suggested that they proceed with his evidence. The Crown agreed and defence counsel did not object. The witness testified for the rest of the day.

4The next day, the appellant discharged her trial counsel and requested an adjournment to retain new counsel. The trial judge granted the adjournment and dismissed the s. 11(b) application with reasons to follow.

5It took the appellant a long time to retain new counsel. The trial resumed more than a year later on December 7-8, 2011. The evidence was not completed and additional time was scheduled. On February 13, 2013, the trial judge delivered comprehensive reasons for dismissing the s. 11(b) application.

6The appellant contends that this chronology establishes a reasonable apprehension of bias in two respects.

7First, the appellant submits that the trial judge should not have heard evidence from the main Crown witness (the afternoon [page427] of the first trial day) before making her s. 11(b) ruling (the start of the second trial day). The appellant says that this chronology exposed the trial judge to critical pieces of the Crown case and this may have influenced her s. 11(b) ruling.

8Second, the fact that the trial judge delivered her reasons for the s. 11(b) ruling 15 months after the application, and after hearing two more days of evidence, suggests again that her s. 11(b) ruling may have been tainted by the evidence she heard.

9We do not accept these submissions. An allegation of reasonable apprehension of bias should not be made lightly. That is because, as McLachlin C.J.C. said in Cojocaru v. British Columbia Women's Hospital and Health Centre, [2013] 2 S.C.R. 357, [2013] S.C.J. No. 30, 2013 SCC 30, at para. 22:

There is a presumption of judicial integrity and impartiality. It is a high presumption, not easily displaced. The onus is on the person challenging the judgment to rebut the presumption with cogent evidence showing that a reasonable person apprised of all the relevant circumstances would conclude that the judge failed to come to grips with the issues and decide them impartially and independently.

(Emphasis added)

10In our view, the appellant's submissions on this issue do not come close to the "cogent evidence" required by Cojocaru.

11In most cases, a trial judge makes her s. 11(b) ruling before any evidence is called. However, in light of the exceptionally busy dockets in provincial courts, we cannot say this practice must be an invariable one.

12In this case, the trial judge indicated that she was inclined to hear from the first witness, after indicating that she would reserve her decision on the s. 11(b) application. This witness had travelled to Australia rather than attend on an earlier trial date, and was the subject of a material witness warrant. He was present when argument was completed on the s. 11(b) application. Crown counsel indicated that he was content to proceed with the evidence of the first witness that afternoon. Defence counsel was silent. The trial judge's decision to hear a few hours of evidence from this witness before she formally dismissed the s. 11(b) application the next morning does not give rise to a reasonable apprehension of bias. There is nothing in the ruling on that application to suggest that it was affected by the evidence heard before the application was dismissed.

13Nor does the fact that the s. 11(b) ruling was delivered 15 months later once the trial had resumed raise a bias concern. During a trial, rulings with reasons to follow is a common and necessary practice. The reasons on the s. 11(b) application in this case are very comprehensive and address carefully and in detail [page428] the submissions that the parties, especially the appellant, made at the application hearing. There is not even a hint that the ruling was coloured by the evidence heard between the day she announced her ruling (the second trial day) and the day she delivered her reasons.

14On the sentence appeal, the appellant challenges only the restitution portion of the sentence; she says that the trial judge did not consider her ability to pay, contrary to decisions of this court, including R. v. Biegus, 1999 CanLII 3815 (ON CA), [1999] O.J. No. 4963, 141 C.C.C. (3d) 245 (C.A.) and R. v. Castro (2010), 102 O.R. (3d) 609, [2010] O.J. No. 4573, 2010 ONCA 718.

15We do not accept this submission. There is no doubt that the trial judge was alive to the issue of the appellant's ability to pay a restitution order. During the sentence hearing, the trial judge explored this issue through several questions directed at defence counsel. Moreover, in her reasons for sentence, the trial judge recorded:

She reports that she currently has no source of income, other than casual remuneration for working for Mr. Gonsalves, the father of her son, and Mr. Disotti, her current common-law spouse. She reports that she has no savings.

16The conviction and sentence appeals are dismissed.