Her Majesty the Queen v. C.D.H.

[Indexed as: R. v. H. (C.D.)]

Ontario Reports

Court of Appeal for Ontario,

Laskin, Feldman and Simmons JJ.A.

February 13, 2015

125 O.R. (3d) 225 | 2015 ONCA 102

Case Summary

Courts — Judges — Bias — Reasonable apprehension of bias — Trial judge acquitting accused of sexual assault and other offences and convicting him of common assault — Trial judge visiting dating website on which accused and complainant met before sentencing phase of proceedings — Trial judge calling officer in charge into his chambers and telling her that defence counsel "would have been able to hang" complainant with available information had she visited website — Trial [page226] judge granting mistrial on convictions after officer reported conversation to Crown on basis of reasonable apprehension of bias but being functus officio regarding acquittals — On Crown appeal against acquittals fresh evidence being permitted detailing judge's actions — Fresh evidence admitted and Crown's appeal from acquittals allowed — Trial judge's conduct giving rise to reasonable apprehension of bias.

The accused was acquitted of sexual assault and other offences. The trial judge found him guilty of common assault, and the accused pleaded guilty to two breaches of recognizance. Before the sentencing phase of the proceedings, the trial judge visited the dating website where the accused and the complainant met. He called the officer in charge into his chambers and told her that defence counsel "would have been able to hang the victim with all of the available information" had she visited the website. The officer reported the conversation to the Crown. The trial judge subsequently granted a mistrial on the convictions on the basis that his actions created a reasonable apprehension of bias but he concluded that he was functus officio with respect to the acquittals. The Crown appealed the acquittals.

Held, the appeal should be allowed.

The conduct of the trial judge gave rise to a reasonable apprehension of bias. In declaring a mistrial, the trial judge himself recognized that the verdicts were tainted by reasonable apprehension of bias. His reference to being functus officio with regard to the acquittals but not the convictions indicated that had he not been functus, he would have declared a mistrial on all of the charges. The trial judge's reasons did not dispel concerns about a reasonable apprehension of bias. In his reasons, he commented negatively on the complainant's use of a screen and a support person while testifying and he appeared to rely on irrelevant stereotypes about how a victim of a sexual assault should behave when judging her credibility. Finally, he indicated that the accused's anger at the complainant was understandable after the accused saw e-mails that she sent to other men on the dating site. The Crown has demonstrated that the judge's actions in going to the website and his conversation with the police officer created a reasonable expectation of bias.

Cases referred to

Committee for Justice and Liberty v. Canada (National Energy Board), 1976 2 (SCC), [1978] 1 S.C.R. 369, [1976] S.C.J. No. 118, 68 D.L.R. (3d) 716, 9 N.R. 115; Hazelton Lanes Inc. v. 1707590 Ontario Ltd., [2014] O.J. No. 5365, 2014 ONCA 793, 326 O.A.C. 301, 247 A.C.W.S. (3d) 99

Statutes referred to

Criminal Code, R.S.C. 1985, c. C-46, ss. 486.1(6) [as am.], 486.2(8) [as am.]

APPEAL by the Crown from the acquittals entered Ray J., sitting without a jury, [2013] O.J. No. 5831, 2013 ONSC 7789 (S.C.J.).

Jennifer Woollcombe, for appellant.

Celine Dostaler, for respondent.

[1] BY THE COURT: -- The Crown appeals from the acquittals of the respondent on a number of charges including sexual assault, possession of a weapon, two counts of unlawful confinement and assault. While acquitting the respondent of sexual [page227] assault on his wife, the trial judge found him guilty of the included offence of simple assault. The respondent also pled guilty to two breaches of recognizance.

[2] Before sentencing on the convictions, the trial judge declared a mistrial based on a reasonable apprehension of bias that arose out of a meeting that he had in his chambers with the officer in charge of the case immediately after he delivered the reasons for his verdicts. The following are the circumstances that caused the trial judge to declare a mistrial.

[3] After seeking further input from counsel on the issue of included offences, the trial judge retired before giving his decision. During the break, the trial judge sent a message to the officer in charge that he would like to see her in his chambers after he had delivered his reasons.

[4] When she arrived, the trial judge told her that the reason he had called her into chambers was to ask if she had gone onto the website "Match.com". The evidence at trial had been that the complainant and the respondent had met on Match.com and that during the alleged sexual assault encounter, the respondent had become angry and searched that website to see the complainant's other contacts there.

[5] The trial judge told the officer that he had gone onto the website the night before and created a fake profile of himself. He said that had defence counsel done the same thing, she "would have been able to hang the victim with all of the available information", because a large amount of information is entered including how many drinks a desired partner should consume. They also discussed the evidence in the case and the witnesses.

[6] The officer reported the conversation to the Crown Attorney and eventually provided a written statement.

[7] The Crown sought to appeal the acquittals and moved before the trial judge for a mistrial on the convictions. The trial judge made a statement at the opening of the mistrial application including:

The only information I had at the time I gave my decision on December 18th, 2013 was the evidence heard in court and reviewed in my decision. I finished my written decision, left the office, and while at home during the evening went online out of curiosity about the Match.com website which had been mentioned in evidence. After signing in, using an anonymous user name, I was faced with a great number of very personal questions. I then logged out. I did not conduct any research about the complainant, and no information about the complainant was made available to me.

My conversation with Detective Lehman about the website was based on the type and extent to [sic] the questions I found from my brief log in the previous evening after I had written my decision, and that any person using the website is required to disclose a great deal of personal information. My point [page228] was, if this type of information could be accessed, it might be useful as a potential investigative tool and for counsel in a criminal trial.

[8] In granting the mistrial, the trial judge added:

Notwithstanding what I have said, my off the record conversation with Detective Lehman in the absence of counsel was clearly an error in judgment on my part and is the basis of the Crown's argument of perceived apprehension of bias on my part. The Crown made it clear that it is not their case that I am or was biased, but that there is an appearance of bias.

While I am functus officio with respect to those counts on which I entered an acquittal, I am not functus with respect to the charges on which I entered guilty verdicts until I have imposed sentence.

Where there are exceptional circumstances and where clearly called for, a trial judge may vacate the adjudication of guilt at any time before a sentence is imposed. R. v. Griffiths, 2013 ONCA 510, and R. v. Lessard, 1976 1417 (ON CA), 1977, 30 C.C.C. (2nd) 70.

While I feel confident I can disabuse myself of any out of court evidence concerning C.D.H. that I received during the conversation with Detective Lehman, the appearance of fairness may very well have been affected. I am persuaded that my conversation with Detective Lehman about the evidence in this case after I gave my decision taints the perceived fairness of the process, and is an exceptional circumstance requiring a mistrial.

Similarly, I am concerned that the tainting of the perceived fairness of the process cannot be cured by my recusal in favour of another judge to complete the penalty phase. As a consequence, I am not prepared to exercise my discretion in favour of recusing myself pursuant to section 669.2 of the Criminal Code.

Accordingly, the Crown's application is granted, a mistrial is ordered, and the findings of guilt made by me on December 18, 2013 are vacated.

[9] The Crown raises a number of grounds of appeal that arise from the reasons for judgment, including errors with respect to the trial judge's approach to the credibility of the complainant. However, it is unnecessary to deal with these other grounds. The outcome of the appeal turns on the issue of reasonable apprehension of bias.

[10] On that ground alone, we are satisfied that the circumstances we have outlined gave rise to a reasonable apprehension of bias. The acquittals must be set aside and a new trial ordered. Two considerations support this conclusion. (1) In declaring a mistrial, the trial judge himself recognized that the verdicts were tainted by reasonable apprehension of bias; and (2) the conduct of the trial judge in conducting his own evidentiary research while the decision was under reserve -- whether or not he had already written his reasons or he accessed any actual details about the complainant -- and his comment to the officer about using the website information to "hang" the complainant, created the appearance of bias. [page229]

[11] The long-accepted test for reasonable apprehension of bias was set out by de Grandpré J. in Committee for Justice and Liberty v. Canada (National Energy Board), 1976 2 (SCC), [1978] 1 S.C.R. 369, [1976] S.C.J. No. 118, at p. 394 S.C.R., as follows:

[T]he 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. . . . [The] 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."

[12] Furthermore, as this court recently observed in Hazelton Lanes Inc. v. 1707590 Ontario Ltd., [2014] O.J. No. 5365, 2014 ONCA 793, at para. 60, "in order to maintain public confidence in the administration of justice, the appearance of judicial impartiality is as important as the reality".

[13] As just noted, the trial judge himself acknowledged the appearance of bias and that his conversation with the officer about the evidence "taints the perceived fairness of the process". His reference to being functus officio with regard to the acquittals but not the convictions indicates that had he not been functus, he would have declared a mistrial on all of the charges.

[14] We agree that the conduct of the trial judge created a reasonable apprehension of bias. He conducted his own research into a website that had been the subject of evidence at trial while his decision was under reserve, contrary to the basic principle that judges and jurors must make their judicial decisions based only on the evidence presented in court on the record. Jurors are specifically told not to conduct any Internet searches about anything in the case.

[15] His comment to the officer about the information that defence counsel could have obtained on the website to "hang" the complainant may have an innocent explanation, but viewed objectively, from the standpoint of a reasonable person, the comment creates the impression that, consciously or unconsciously, the trial judge would not decide fairly, and in particular would not fairly decide the credibility of the complainant.

[16] One would not be disabused of this impression by the negative comments made by the trial judge about the complainant and her credibility in his reasons for judgment. We cite three examples. First, contrary to the prohibitions contained in ss. 486.1(6) and 486.2(8) of the Criminal Code, R.S.C. 1985, c. C-46, the trial judge commented negatively about the complainant's having testified with a support person and behind a screen. [page230]

[17] Second, the trial judge used irrelevant stereotypes to judge the complainant and make adverse findings against her. In the following passage, he said [at para. 33]:

Her manner bordered on being rude. Yet when she wanted to, she was feisty and debated with the defence counsel. She certainly did not give me the impression that she was in any way an abused woman or that she was insecure. Her job as a personal trainer visiting customers in their homes suggests that she is likely an independent minded person. While watching WR give her evidence it crossed my mind that perhaps she was using the screen and support worker as props to further attempt to engage sympathy.

[18] Third, after noting that the respondent had looked on Match.com to see what liaisons the complainant had there, the trial judge concluded that the respondent's anger at the complainant was understandable when he saw her e-mails with other men.

Conclusion

[19] The conduct of the trial judge while his decision was under reserve as well as his statements to the officer about that conduct were improper and created a reasonable apprehension of bias and lack of impartiality. This apprehension of bias taints the verdicts of acquittal.

[20] The appeal is allowed, the verdicts of acquittal are set aside and a new trial is ordered on those charges.

Appeal allowed.

End of Document