WARNING

The President of the panel hearing this appeal directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 486.4(1) , (2) , (2.1) , (2.2) , (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.4(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences;

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and

(b) on application made by the victim, the prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of their right to make an application for the order; and

(b) on application of the victim or the prosecutor, make the order.

(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15 ; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5 ; 2012, c. 1, s. 29 ; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18 .

486.6(1) Every person who fails to comply with an order made under subsection 486.4(1) , (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15 .

Court of Appeal for Ontario

Date: 20220126 Docket: C68124

Paciocco, Nordheimer and Sossin JJ.A.

Between:

Her Majesty the Queen Respondent

and

M.M. Appellant

Counsel: Howard L. Krongold, for the appellant Gregory Furmaniuk, for the respondent

Heard: January 13, 2022 by video conference

On appeal from the conviction entered by Justice Ronald A. Minard of the Ontario Court of Justice, on September 20, 2019.

Sossin J.A.:

Overview

[1] After a five-day trial, the appellant was convicted of sexual interference and sexual assault of a 14-year-old complainant.

[2] The appellant was sentenced to 14 months in custody, along with a DNA order under ss. 487.04 and 487.051(1) of the Criminal Code, R.S.C. 1985, c. C-46, an order under s. 490.013(2)(b) of the Code to comply with the Sex Offender Information Registration Act for 20 years, and prohibitions against possessing weapons and contacting the complainant.

[3] The complainant was a friend of the appellant’s daughter. She alleged that the assault took place at a construction site where the appellant worked and where he had arranged for the complainant to work for the day.

[4] During a recess in the trial, the trial judge was approached by Linda Pearson, a sitting justice of the peace. The justice of the peace had access to the area behind the courtroom reserved for judges and court staff. She approached the trial judge there. No one witnessed the exchange between the trial judge and the justice of the peace, but the justice of the peace had advised trial Crown of her intention to approach the trial judge.

[5] According to the trial judge, the justice of the peace informed him that she was the mother of M.M.’s ex-spouse and the grandmother of M.M.’s three children. She sought the trial judge’s “blessing” to attend the trial. The trial judge answered that anyone was free to observe the trial in the courtroom. The justice of the peace left the judge’s chambers, but returned shortly after to tell the trial judge he could “carry on” without her because M.M. did not want her watching his trial.

[6] Upon resuming, the appellant sought a mistrial on the basis that the ex parte discussion between the justice of the peace and the trial judge gave rise to a reasonable apprehension of bias.

[7] The trial judge dismissed the application for a mistrial. He acknowledged that the discussion with the justice of the peace had been unfortunate and should not have occurred, but concluded that he was able to disabuse himself of the encounter.

[8] In convicting the appellant, the trial judge applied the framework articulated in R. v. W.(D.), [1991] 1 S.C.R. 742. When considering the first branch of the W.(D.) framework, the trial judge rejected the appellant’s evidence denying the substance of the complainant’s allegations. Specifically, the trial judge rejected the appellant’s explanation for sending late night text messages to the complainant, noting that the appellant agreed with the suggestion that texting the complainant in that way and at that time was “not normal”.

[9] The trial judge then briefly considered the second branch of the W.(D.) framework, where he concluded that he was not left in a reasonable doubt by the accused’s testimony. Finally, when considering the third branch of the W.(D.) framework, the trial judge concluded that the complainant’s evidence was sufficiently credible and reliable to prove the case against the appellant beyond a reasonable doubt.

Analysis

[10] In his Notice of Appeal, the appellant raised two grounds of appeal relating to the conviction: first, that the trial judge erred in not granting the application for a mistrial based on a reasonable apprehension of bias in light of his ex parte discussions with the justice of the peace; and second, that the trial judge erred in the application of the W.(D.) framework.

[11] In oral submissions, the appellant stated he is no longer advancing the ground of appeal relating to the trial judge’s application of the W.(D.) framework, and is now pursuing only the ground of appeal relating to the mistrial.

[12] The Notice of Appeal also included an appeal against the sentence imposed but this ground of appeal was not pursued by the appellant.

A. Did the Trial Judge err in dismissing the application for a mistrial?

[13] The appellant argues that the trial judge erred in finding that his ex parte discussion with the justice of the peace did not lead to a reasonable apprehension of bias. While the appellant takes no issue with the actual impartiality of the trial judge and acknowledges the high burden to displace the presumption of impartiality, he contends that a reasonable person would conclude that the trial judge would not decide the case fairly based, in part, on the following elements of the ex parte discussion:

• the communication was with a judicial officer of the same court and took place in the area of the courthouse reserved for judicial officers and court staff;
• there was no reason for the justice of the peace to approach the trial judge other than to communicate her discernable interest in the case;
• the ex parte communication took place during the trial; and
• the appellant faced serious charges where his credibility was a central issue in the trial.

[14] In short, the appellant argues that the justice of the peace inserted herself into the trial in a way that “destroyed the appearance of fairness.”

[15] The Crown opposed the application for a mistrial, and argues before this court that the trial judge responded appropriately to a situation which was not of his making by taking remedial steps to preserve fairness. These included putting his entire recollection of the encounters on the record and inviting submissions from the parties on whether the encounters created a reasonable apprehension of bias.

(1) The Reasonable Apprehension of Bias Principle

[16] The application for a mistrial turned on whether the encounter between the justice of the peace and the trial judge gave rise to a reasonable apprehension of bias, when considered as a whole and in all of the circumstances.

[17] The reasonable apprehension of bias is a principle of fairness. It relates not to the propriety of a judge’s or a third party’s conduct, but rather to whether, in the eyes of a reasonable observer, the accused is able to receive a fair trial in light of such conduct.

[18] The test for a reasonable apprehension of bias is long-standing, and was first set out by de Grandpré J. in Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369, at p. 394 (dissenting):

… what would an informed person, viewing the matter realistically and practically — 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. [Citation omitted.]

[19] The inquiry into whether a decision-maker’s conduct creates a reasonable apprehension of bias, as a result, is inherently contextual and fact-specific. Further, a presumption of impartiality, not easily displaced, imposes a high burden on the party alleging bias: Yukon Francophone School Board, Education Area #23 v. Yukon (Attorney General), 2015 SCC 25, [2015] 2 S.C.R. 282, at paras. 25-26.

[20] At the outset of his reasons dismissing the application for a mistrial, the trial judge reiterated the principle that justice must not only be done but be seen to be done. With this principle in mind, he put the question before him this way: “[W]ould the reasonable person out there knowing the facts conclude that circumstances that happened were sufficiently inappropriate that it compromises at least the latter portion of that principle, that justice must be seen to be done[?]”

[21] In my view, the trial judge properly instructed himself on the test to be applied on a mistrial application. He correctly focused his inquiry on the appearance of bias and the paramount importance of fairness to the appellant.

(2) Applying the Reasonable Apprehension of Bias Principle in this Case

[22] Applying the principle set out above to this case, it is important to highlight that both parties agree that the trial judge did not act improperly when approached by the justice of the peace.

[23] The trial judge acknowledged that he was caught off guard by the encounter, and that he had never been approached in this way during a trial over his 26-27 years on the bench. He stated that, in hindsight, counsel for the Crown should have advised the justice of the peace not to speak with him in the midst of trial, and that it was not appropriate for her to attend. The trial judge also conceded that, although she had the right to do so, he himself should have advised the justice of the peace that it would be “unwise” for her to attend the trial given her position and relationship with the appellant.

[24] While he might have acted differently with the benefit of hindsight, the trial judge concluded that, as an experienced jurist, the encounters would in no way influence his ability to disabuse his mind of what had occurred and uphold the presumption of innocence to which the appellant was entitled.

[25] Finally, the trial judge considered the practical implications of a potential mistrial. He noted the additional delay which a mistrial would create. He highlighted the difficulty experienced by the complainant, who was then in the midst of testifying, and the risk that a new trial, including the requirement to testify again before a different judge, would significantly worsen her emotional state.

[26] Weighing all of these factors, the trial judge concluded that the encounter was “unfortunate” and “should not have occurred”, but it did not compromise the fairness of the trial, and that the application for a mistrial should be dismissed.

[27] Neither party was able to cite a case where a judge’s ex parte communication with another judicial officer was directly at issue. Rather, each party relies on cases involving ex parte communications between judges and counsel, parties or others.

[28] The Crown relies on R. v. Arnold, [2000] O.J. No. 3749 (C.A.). In that case, this court affirmed a lower court decision finding no reasonable apprehension of bias where a judge had communicated with Crown counsel outside the presence of the defence. In that case, the application judge concluded that it is not the mere fact of an ex parte communication that gives rise to a reasonable apprehension of bias but rather the content of such communication. Specifically, citing the judgment of McLachlin and Major JJ. in R. v. Curragh Inc., [1997] 1 S.C.R. 537, at para. 104 (dissenting, but not on this point), the application judge found that the content did not create the appearance of bias because it would not sway the court to one party’s position.

[29] By contrast, this court found a reasonable apprehension of bias in R. v. C.D.H., 2015 ONCA 102, 125 O.R. (3d) 225, where a trial judge had an ex parte conversation with the investigating police officer, because the content of that conversation involved a specific view expressed by the trial judge that appeared adverse to the complainant in the alleged crime.

[30] While I accept the importance of considering whether the content of ex parte communications may create the appearance of favouring one party over another, there are circumstances where the mere fact of ex parte communications may itself create an appearance of bias. Where, as here, a judicial officer approaches a judge in order to make the judge aware of her personal interest in the case, the appearance of impartiality may be in doubt, depending on how the trial judge responds.

[31] In this case, had her conduct stood alone, the actions of justice of the peace may well have given rise to an appearance of bias. The content of the justice of the peace’s comments revealed both that she had a vested interest in the case as the grandmother of the appellant’s children, and an acrimonious relationship with the appellant. A reasonable person could certainly see this communication as swaying the trial judge to disfavour the appellant in a case where credibility would be a significant issue.

[32] However, as indicated, while a third party’s conduct may be relevant to the analysis, the focus of the inquiry into a reasonable apprehension of bias is the conduct of the judge. In this case, had the trial judge done nothing but acknowledge this encounter, a reasonable apprehension of bias may well have remained.

[33] The trial judge did not, however, do nothing in the face of these encounters. Rather, he took deliberate steps to mitigate the appearance of unfairness that this unwelcome encounter might have caused, including the following:

• he put his recollection of the two encounters with the justice of the peace on the record within minutes of the second encounter;
• he heard and considered submissions from counsel on whether the encounters justified a mistrial; and
• he explained in his reasons why he believed he could remain impartial notwithstanding the encounters.

[34] The trial judge reasoned that, while the encounter may mean that the appellant would not receive a perfect trial, it would not mean, when viewed from the perspective of a reasonable observer, that the appellant would not receive a fair trial.

[35] The justice of the peace’s decision to approach the trial judge in the midst of the trial to make her interest in the case known showed a concerning lapse of judgment on her part. In light of the remedial steps subsequently taken by the trial judge, however, a reasonable observer would not be more likely than not to conclude that the trial judge was biased.

[36] Therefore, the trial judge did not err in dismissing the application for a mistrial.

Disposition

[37] For the reasons set out above, there was no error by the trial judge in his dismissal of the appellant’s application for a mistrial.

[38] Accordingly, the appeal is dismissed.

Released: January 26, 2022 “David M. Paciocco J.A.” “L. Sossin J.A.” “I agree. David M. Paciocco J.A.” “I agree. I.V.B. Nordheimer J.A.”