Court Information
Ontario Court of Justice
Parties
Between:
Her Majesty the Queen
— AND —
Doran Masoumi
Before
Justice of the Peace Shailesh Dudani
Heard on: July 10 and 11, 2018
Reasons for Judgment released on: August 23, 2018
Counsel
Jamie MacPherson — for the prosecution
Payam Javadi — agent for the defendant Doran Masoumi
JUSTICE OF THE PEACE DUDANI:
I. Background
1Doran Masoumi stands charged that on March 19, 2017, he did commit the offence of careless driving contrary to s. 130 of the Highway Traffic Act, R.S.O. 1990, c. H. 8.
2On July 10, 2018, I commenced a Highway Traffic Act careless driving trial that was scheduled to last approximately three days.
3After the prosecutor, Jamie MacPherson, concluded her opening statement, Mr. Javadi, a paralegal representing the defendant, brought a viva voce application before this court requesting that I recuse myself from hearing this matter. Mr. Javadi alleged that I had a conflict against an associate of his, Mr. M. Tadros, and that the defendant Mr. Masoumi would not receive a fair hearing as a result.
4The prosecutor asked through the Court Mr. Javadi to call Mr. Tadros to testify and Mr. Javadi then called Mr. Tadros to the stand. Mr. M. Tadros testified that, although he is self-employed and has his own client base, he appears before various courts on behalf of, and representing, other paralegal firms including Mr. Javadi's firm. Mr. Tadros testified that when he appeared before me on November 24, 2017 in the case of R. v. Basha Mohamed, I was hostile and aggressive towards him. Mr. Tadros further testified that I am also hostile towards numerous other paralegals. When the court asked Mr. Tadros for details about this conduct, he could recall only one name, that of a Mr. Ahmadi. He could not provide or recall any specific details of the alleged incident involving Mr. Ahmadi, nor any other matters or incidents to support his claim.
5In response to a further question from the court, Mr. Javadi advised that he also had witnessed me being hostile towards paralegals. The only example he provided to support this allegation related to a time where in 2004 when he worked in the courts as a clerk in my court, and testified that I would not permit paralegals to sit at the front of the court where other counsel sit at the counsel table.
II. The Law
6The test for reasonable apprehension of bias is that set out by de Grandpré J. in Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369. Although de Grandpré J. was dissenting, the test for bias that he articulated was adopted by the majority of the court, and has been consistently endorsed by the Supreme Court of Canada in subsequent cases: see, for example, Valente v. The Queen, [1985] 2 S.C.R. 673; R. v. Lippé, [1991] 2 S.C.R. 114; Ruffo v. Conseil de la magistrature, [1995] 4 S.C.R. 267; and Yukon Francophone School Board, Education Area #23 v. Yukon (Attorney General), 2015 SCC 25 , [2015] 2 S.C.R. 282. The test for a reasonable apprehension of bias was stated by De Grandpré J. as follows, at pp. 394-95:
. . . 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.... [T]hat test is "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." … The grounds for this apprehension must, however, be substantial…
7In Yukon Francophone School Board, the Supreme Court explained that the objective of the test is to ensure not only the reality, but the appearance of a fair adjudicative process (at para. 22). The court went on to explain (at paras. 25-27):
Because there is a strong presumption of judicial impartiality that is not easily displaced (Cojocaru v. British Columbia Women's Hospital and Health Centre, 2013 SCC 30 , [2013] 2 S.C.R. 357, at para. 22), the test for a reasonable apprehension of bias requires a "real likelihood or probability of bias" and that a judge's individual comments during a trial not be seen in isolation: see Arsenault-Cameron v. Prince Edward Island, [1999] 3 S.C.R. 851, at para. 2; S. (R.D.), at para. 134, per Cory J.
The inquiry into whether a decision-maker's conduct creates a reasonable apprehension of bias, as a result, is inherently contextual and fact-specific, and there is a correspondingly high burden of proving the claim on the party alleging bias: see Wewaykum, at para. 77 [Wewaykum Indian Band v. Canada, 2003 SCC 45 , [2003] 2 S.C.R. 259]; S. (R.D.), at para. 114, per Cory J. [R. v. S. (R.D.), [1997] 3 S.C.R. 484]. As Cory J. observed in S. (R.D.):
. . . allegations of perceived judicial bias will generally not succeed unless the impugned conduct, taken in context, truly demonstrates a sound basis for perceiving that a particular determination has been made on the basis of prejudice or generalizations. One overriding principle that arises from these cases is that the impugned comments or other conduct must not be looked at in isolation. Rather it must be considered in the context of the circumstances, and in light of the whole proceeding. [Emphasis added; para. 141.]
That said, this Court has recognized that a trial judge's conduct, and particularly his or her interventions, can rebut the presumption of impartiality. …
8As pointed out by Doherty J.A. in Beard Winter LLP v. Shekhdar, 2016 ONCA 493, at para. 10:
It is important that justice be administered impartially. A judge must give careful consideration to any claim that he should disqualify himself on account of bias or a reasonable apprehension of bias. In my view, a judge is best advised to remove himself if there is any air of reality to a bias claim. That said, judges do the administration of justice a disservice by simply yielding to entirely unreasonable and unsubstantiated recusal demands. Litigants are not entitled to pick their judge. They are not entitled to effectively eliminate judges randomly assigned to their case by raising specious partiality claims against those judges. To step aside in the face of a specious bias claim is to give credence to a most objectionable tactic.
III. Analysis
9I have given careful consideration to the claim that my conduct in past proceedings involving paralegals and agents gives rise to a reasonable apprehension of bias in the present proceeding. I have concluded that there is no air of reality to this claim.
10There is no relationship that I found between the case before the court and the Basha Mohamed case of November 24, 2017, when Mr. Tadros appeared as an agent on behalf of Mr. Javadi. There is no suggestion in the present case that Mr. Tadros has been retained by the defendant. Nor has Mr. Tadros appeared on behalf of the defendant as his representative in any judicial or Crown pre-trials in this matter. An allegation of hostility towards a paralegal in a different matter, totally unsubstantiated, who is not representing the defendant before this court does not rise to the level of cogent evidence sufficient to rebut the presumption of judicial impartiality. Mr. Tadros provided no other details of any incidents that would provide support for a finding of a reasonable apprehension of bias.
11Mr. Javadi asserts that I exhibited hostility towards paralegals because I did not permit them to sit at counsel table. In 2004, when Mr. Javadi was working as a court clerk, these individuals were not paralegals. They were agents and had no status with the Law Society of Upper Canada (now known as the Law Society of Ontario). Mr. Javadi's allegation that the 2004 treatment reveals a present hostility on my part to defence agents is unfounded and baseless. Even accepting for the sake of argument that a justice's exercise of the power to determine where individuals sit in the courtroom could potentially give rise to a reasonable apprehension of bias, I fail to see how my past practice in refusing to allow agents to sit at a table reserved for lawyers at a time when agents were not licensed paralegals could give rise to a reasonable apprehension of bias in these proceedings: see R. v. Lippa, 2013 ONSC 4424, at paras. 23-24. After the Law Society began issuing licenses for paralegals, my practice has been to permit paralegals to sit at counsel table. Moreover, there is no suggestion that I prevented Mr. Javadi from sitting at counsel table at any time.
12In conclusion, based on the evidence before the court and the governing authorities, I conclude that the motion is without merit.
13The motion for me to recuse myself is denied.
14The case is adjourned to November 7, 2018 in courtroom C6 at 70, Centre Avenue at 9.00 am for trial.