DATE: 20040720

DOCKET: C39277

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) – and - JOHN BAPTIST D'SOUZA (Appellant)

BEFORE: WEILER, SHARPE and SIMMONS JJ.A.

COUNSEL: Richard Litkowski for the appellant

Riun Shandler for the respondent

HEARD: July 15, 2004

On appeal from the conviction entered by Justice Nicholson D. McRae of the Superior Court of Justice dated October 22, 2002 and the sentence imposed by Justice McRae dated November 29, 2002.

E N D O R S E M E N T

[1] The appellant was convicted of fraud over $5,000. He appeals his conviction on two grounds: the first is that the verdict was unreasonable; the second is that the conduct of the trial judge gives rise to a reasonable apprehension of bias.

Unreasonable Verdict

[2] The appellant submits that there are gaps in the evidence and that the Crown’s case raised suspicions about his role in the dealings with the property at 6 Henderson Avenue and no more. Consequently he submits the verdict was unreasonable.

[1] On our review of the record, there was evidence, which, if accepted, was capable of supporting a finding of guilt.

[2] The appellant told the document examiner that he hired for the trial that he had prepared the Notice of Seizure and Assignment of Mortgage documents used to seize the bank’s mortgage relating to the property at 6 Henderson Ave. and transfer that mortgage into the names of the appellant and his two co-tenants. Although the Notice of Seizure was regular on its face and was included in the Sheriff’s file, the same cannot be said for Assignment of Mortgage and related Agreement to Purchase, which the appellant also admitted preparing. Although apparently signed by the Sheriff or his staff, these documents could not be located in the Sheriff’s Office file and the Sheriff’s records produced at trial give no indication that they were processed through the Sheriff’s office. Moreover, an assignment of a seized mortgage by the Sheriff is not an authorized procedure. The inferences that could be drawn from this evidence alone were sufficient to support a finding of guilt.

[3] In addition, Mavis Singh testified that the appellant arranged for her to rent the property at 6 Henderson and that she paid him rent from the start of her occupancy in August 1995 to the date of her eviction in January 1998. There was additional evidence linking the appellant to the subsequent transactions whereby the $170,000 mortgage was initially sold for $17,000; whereby the property was then sold under the power of sale contained in the mortgage for $100,000; and whereby the property was finally resold for $200,000 and a mortgage of $140,000 was obtained.

[4] In summary, there was evidence which, if accepted, linked the appellant to the events in question from their inception to their end. He benefited financially by collecting rent on a property he did not own. By keeping the bank from realizing on its mortgage, he placed the bank at risk of the financial loss it eventually suffered.

A Reasonable Apprehension of Bias

[5] The threshold for a finding of judicial bias or the appearance of bias is high. The assessment requires a careful and thorough review of the entire proceedings. The impugned conduct should be considered in the context of the particular circumstances. Bearing these strictures in mind, we nevertheless conclude that the appeal must be allowed on this issue.

[6] On our review of the record, the conduct of the trial judge gives rise to a reasonable apprehension of bias based on prejudging an issue for two reasons. First, the trial judge made comments during the course of the evidence of Crown witnesses impugning their credibility. Moreover, some of his comments were directed at eliciting more forthright evidence from Crown witnesses as part of their evidence in chief. One example is the trial judge’s comments during the course of the evidence of the witness Marchong. The trial judge’s comments included the following:

The Court: I wish you would be forthcoming with this information and not be so reluctant to say what your part in this whole thing was. You would be much better off to tell us the truth you know.

The Court: Well, I’ve got the picture here. I don’t think we’re getting the truth from this witness. We’re not getting the whole truth, that’s for sure. You took an oath to tell the truth.

The Court: Anyway, let’s move on. I think I understand this man’s position in this whole thing. Have you got a criminal record?

The Witness: No

The Court: No. Not yet anyway.

The Court: Somehow I don’t believe hardly anything you say, Mr. Marchong.

The Court: Are you still a real estate agent?

The Witness: No

The Court: Was your licence rescinded or what?

The Witness: It was going to expire the end of this month, but I’m not going to renew it.

The Court: Good idea.

[7] As a general matter, trial judges should refrain from making comments relating to the credibility of witnesses during the presentation of the evidence and should not take an active role in eliciting evidence. However, depending on the context, such conduct will not inevitably give rise to a finding of reasonable apprehension of bias. In this case, the trial judge’s adverse comments relating to the credibility of witnesses related exclusively to Crown witnesses. Ordinarily, such comments might be viewed as benign from the perspective of the defence. Here, the witnesses in question were participants with the appellant in a series of transactions the trial judge ultimately found to be fraudulent and instigated by the appellant. The trial judge’s adverse comments concerning credibility related primarily to the witnesses’ assertions of ignorance and innocent participation. Viewed in this context, the trial judge’s assertions of disbelief of Crown witnesses midway through the trial support the existence of a reasonable apprehension that he prejudged one of the issues in the case and reached a conclusion that there had been a fraud prior to all of the evidence being heard.

[8] Second, the trial judge made the following comments to a Crown witness, Mr. Puchoon:

The Court: …It’s just bizarre that you gave someone $90,000, if you did. Have you any proof you gave him all of this money.

The Witness: No, sir. It was a private transaction that I made with him.

The Court: Well, how are you going to prove it in a civil action?

The Witness: I guess that’s the mistake I made, sir, not to have proof.

The Court: I hope it’s just a mistake and you’re not involved in this whole thing. It’s just a mistake.

[9] This is but one instance where the trial judge pursued the witnesses on their involvement in this “thing”. In our view, read in context, the trial judge’s comments regarding involvement in this “thing” would be taken by the reasonably informed observer as meaning that the trial judge had already concluded the series of transactions in issue was fraudulent.

[10] Based on the cumulative effect of both of these findings we have reluctantly concluded that there was an appearance of bias.

Disposition

[11] For the reasons given, we would allow the appeal, set aside the appellant’s conviction and order a new trial.

“Karen M. Weiler J.A.”

“Robert J. Sharpe J.A.”

“Janet Simmons J.A.”