R. v. Fell, 2009 ONCA 551

CITATION: R. v. Fell, 2009 ONCA 551

DATE: 2009-07-07

DOCKET: C42552

COURT OF APPEAL FOR ONTARIO

MacPherson, Cronk and MacFarland JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

William Fell

Appellant

Counsel: Brian Snell, for the appellant Christine Bartlett-Hughes, for the respondent

Heard and endorsed orally: June 25, 2009

On appeal from the conviction entered by Justice Michael R. Dambrot of the Superior Court of Justice dated April 3, 2003 and from the sentence imposed by Justice Dambrot dated June 23, 2003.

ENDORSEMENT

[1] The appellant raises three grounds of appeal.

[2] First, the appellant argues that the trial judge erred by dismissing the appellant’s mistrial application based on a reasonable apprehension of bias.

[3] During the cross-examination of Dr. Nussbaum, the defence raised this issue based on what the appellant claimed to have overheard the trial judge discussing about that evidence with his deputy in the corridor outside the courtroom. According to the appellant’s written statement provided to his counsel, on the first occasion, the trial judge is alleged to have said: “Despite Dr. Nussbaum’s low key and quiet manner, he presents a very effective case and he is so far the most credible and insightful witness.”

[4] On the second occasion, later the same day, the trial judge is alleged by the appellant to have said to his deputy: “These two are going to be more objective because they were court appointed and not hired by the defence.”

[5] When the issue was raised, the trial judge readily conceded that he had made comments to his deputy which could have been overheard by the appellant when the two were in the corridor at the same time.

[6] The trial judge, however, disputed the appellant’s version of what he said. He said that he had commented about the low key manner in which Dr. Nussbaum testified, but that he did not say that Dr. Nussbaum was the most credible and insightful witness so far.

[7] In relation to the second occasion, again, the trial judge did not accept the appellant’s version of what he said to his deputy. While the trial judge could not recall his exact words, he said that what he conveyed to his deputy was the idea that there was a certain aura of objectivity that court appointed experts start with, whereas experts retained by a party are often viewed as likely to side with the party that hired them.

[8] We do not accept the submission that the trial judge’s “version” of what he recalled saying “evolved over time”. The trial judge, at the very outset when the matter was first raised, said that he could not recall the exact words he used but rather, only the general nature of his discussion, the substance of which did not change over time. The comments were of a general nature and did not reflect the trial judge’s views on the credibility of witnesses.

[9] The appellant did not give evidence about what he was alleged to have overheard. The allegations were put before the court through the submissions of counsel. There was no evidence called. In particular, no effort was made to call the deputy to whom the comments were allegedly made nor the escorting officer who was with the appellant at the time the comments are alleged to have been made. When an allegation of bias or reasonable apprehension of bias is made against a trial judge, counsel have an obligation to prepare and provide the court with a record of the evidence they rely on in support of this serious allegation. Such a record then is available for the trial judge’s consideration and ruling, as well as for any appellate review of that judge’s decision down the road. There was no such record in this case.

[10] The test for reasonable apprehension of bias is a high one.

What would an informed person dealing with the matter realistically and practically and having thought the matter through conclude? Committee for Justice and Liberty v. Canada (National Energy Board), 1976 2 (SCC), [1978] 1 S.C.R. 369.

[11] In our view, the trial judge held a factual inquiry, sufficient to clear the air and permit appellate review. On the record before him, his determination was the appropriate one. We would not give effect to this ground of appeal.

[12] The second ground of appeal raised relates to the trial judge’s finding that the appellant failed to meet his burden to establish the defence of not criminally responsible. At trial, the sole issue in relation to this defence boiled down to whether the appellant knew his actions were morally wrong at the time he killed his mother and on this the experts were divided. In careful and lengthy reasons, the trial judge reviewed all the evidence and stated why he preferred the evidence of Doctors Ramshaw and Nussbaum over that of Doctors Bloom and Pollack.

[13] The trial judge’s expansive reasons demonstrate that he considered all the evidence, including the five pieces of evidence referenced in paragraph 44 of the appellant’s factum. Nevertheless, he was not persuaded that the appellant had made out the defence. The weighing of conflicting medical opinions is within the exclusive province of trial judges. Absent palpable and overriding error in his assessment of the evidence – and none has been shown – there is no basis for this court to interfere with the trial judge’s decision concerning the availability of this defence.

[14] The third ground of appeal relates to sentence. This was a particularly brutal killing involving breach of trust and some evidence of preplanning. In all the circumstances, we are satisfied that the sentence was a fit one.

[15] The conviction appeal is dismissed. Leave to appeal sentence is granted and the sentence appeal is dismissed.

“J.C. MacPherson J.A.”

“E.A. Cronk J.A.”

“J. MacFarland J.A.”