COURT OF APPEAL FOR ONTARIO
CITATION: R. v. Funes, 2016 ONCA 567
DATE: 20160714
DOCKET: C57828
MacFarland, van Rensburg and Huscroft JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Brian Funes
Appellant
Joseph Di Luca and Dan Stein, for the appellant
Davin Michael Garg, for the respondent
Heard: May 31, 2016
On appeal from the conviction entered on March 19, 2013 and the sentence imposed on July 19, 2013 by Justice Ian B. Cowan of the Ontario Court of Justice.
ENDORSEMENT
[1] The appellant appeals his conviction for various offences in connection with the possession and storage of a firearm. He seeks leave to appeal his sentence of five years in prison.
[2] The appellant was tried by a judge in the Ontario Court of Justice. The trial took four days, with two days of trial in late December 2012 and two days in February 2013. The trial judge reserved his decision and convicted the appellant with written reasons for judgment on March 19, 2013.
[3] The appellant contends that the trial judge erred in refusing a mistrial application after the judge realized he had been sitting on a preliminary inquiry involving the appellant as an alleged victim and in which the appellant had testified. The appellant also argues that the trial judge, in convicting him of firearms offences in relation to a gun that was found in his friend’s house, erred in relying on certain voice recognition evidence offered by a police officer who monitored wiretap conversations in an unrelated investigation. A further ground of unreasonable verdict was withdrawn at the hearing of the appeal. The appellant contends that his sentence was excessive and unreasonable in all the circumstances.
[4] For the reasons that follow we conclude that the trial judge ought to have declared a mistrial in the exceptional circumstances of this case. We would allow the appeal and direct a new trial on this basis. As such, it is unnecessary to address any other ground raised in the conviction and sentence appeals.
[5] The relevant facts are as follows. The firearm in question, a 12 gauge sawed-off shotgun, together with five rounds of ammunition, was found in a gym bag in the bedroom of the appellant’s friend Joseph Magdangal, during the execution of a search warrant at an address in Mississauga. There was nothing in the room to connect the appellant to the gun.
[6] Magdangal was originally charged with the appellant. Two months before the trial he pleaded guilty to the offence of possession of a prohibited weapon. In the course of his guilty plea, he attributed ownership of the firearm and ammunition to the appellant, saying that the appellant had asked him to store the weapon at his home and that he had agreed to do so. When he testified at the appellant’s trial in December 2012, however, Magdangal claimed that he was the owner of the gun. He denied that he was holding it for the appellant. When the trial continued in February 2013, he testified consistently with his guilty plea.
[7] The Crown also introduced as evidence at the appellant’s trial certain recorded telephone conversations from wiretap surveillance targeting the appellant and several other persons in an unrelated homicide investigation. The Crown contended that the appellant was a participant in certain exchanges, and was the “Brian” referred to in conversations relating to a gun. Magdangal identified his own voice and the voices of the appellant and a third person on the recordings, and said they were talking about the appellant’s gun. There were also references in the conversations to “Brian” having been shot. Magdangal admitted that the appellant was the only “Brian” he knew who had been shot.
[8] An officer who conducted live monitoring of the wiretaps also identified the appellant’s voice in three intercepts. He testified that he had reached the point where he could recognize the participants in the wiretaps by their voices. The officer acknowledged that he had direct contact with the appellant only once, when he served notice of the wiretap authorization. He also acknowledged that prior to his testimony he had listened to the recordings that morning before court, and before that he had last listened to the voices almost a year before in the monitoring room.
[9] In his reasons for judgment, the trial judge recognized that it would be unsafe to convict the appellant based solely on the evidence of Magdangal, who was a classic Vetrovec witness. This included both Magdangal’s direct evidence that he was holding the gun for the appellant, and his identification of the appellant’s voice in the intercepts. The trial judge found confirmatory evidence in the officer’s recognition of the appellant’s voice in the wiretap recordings as well as in the substance of what was discussed in the wiretaps. He noted that the case turned on whether he could be satisfied beyond a reasonable doubt that the persons speaking in the wiretaps included the appellant. He said he was satisfied that the voice as identified was that of the appellant and that he was talking about the same shotgun that had been found in Magdangal’s possession.
[10] After delivering written reasons convicting the appellant on March 19, 2013, the trial judge adjourned the case to April 26th for sentencing.
[11] The morning after the conviction, the trial judge was reviewing his notes on a preliminary inquiry he was to continue that day. It was only then that he realized that he had been presiding over a preliminary inquiry in an attempted murder case in which the appellant Brian Funes was one of two alleged victims of a shooting. He notified counsel in both cases.
[12] The preliminary hearing had commenced in July 2012. The appellant testified for two days in November 2012 before the case was adjourned. Meanwhile, the first day of evidence on the appellant’s firearms charges took place December 31, 2012. That trial continued on February 21, 2013 and was completed with closing submissions the following day. The appellant did not testify at his own trial.
[13] Mistrial applications were brought in both proceedings. The issue was whether there was a reasonable apprehension of bias resulting from the judge’s involvement in the two cases. In both cases, counsel acknowledged that there was no actual bias, and that it was understandable that the trial judge, in the busy Brampton court, would not recognize the alleged victim in one case as the accused in another. Indeed, the appellant’s counsel acknowledged that no one, the appellant included, had recognized that the trial judge was the same judge that was presiding over the preliminary inquiry.
[14] The judge granted a mistrial in the preliminary inquiry in the attempted murder proceedings. In his reasons he noted that, because he had listened to wiretap evidence in a trial involving an alleged victim of the shooting that was not in evidence in the preliminary inquiry, and had made certain findings in that case, he had knowledge he should not possess in the preliminary hearing proceedings. He concluded that a reasonably minded person would not know the inferences he might draw and a fair-minded person looking at the case and knowing the circumstances might apprehend that he could not exclude from his mind and disabuse his mind of any evidence from the appellant’s trial.
[15] The trial judge refused to grant a mistrial in the appellant’s case. He concluded that, since he had already rendered a decision, with reasons supporting the decision based upon the evidence called by the Crown, and without making any findings of credibility against the appellant, “a reasonable person informed of the background of [the] case would not conclude that there [was] a reasonable apprehension of bias in its determination”.
[16] The appellant asserts that the trial judge erred in two ways in refusing a mistrial. First, he says that, having declared a mistrial in the preliminary hearing in the attempted murder case, it was illogical for the trial judge not to have declared a mistrial in these proceedings – that result should have flowed automatically from the mistrial ruling in the preliminary inquiry. Second, the appellant contends that the trial judge erred in focusing on whether his judgment had in fact been influenced by his involvement in the preliminary inquiry, rather than considering whether there was a reasonable apprehension of bias arising out of his having heard the appellant testify in the preliminary inquiry in a case where he was the alleged victim of a shooting.
[17] For the reasons that follow, we would give effect to the second argument but not the first.
[18] The applicable legal principles are set out concisely in Wewaykum Indian Band v. Canada, 2003 SCC 45, [2003] 2 S.C.R. 259. In that case, the Supreme Court considered a party’s challenge to a decision the court had already rendered. The author of the court’s decision, Binnie J., had some involvement in the matter 15 years earlier in his capacity as federal Associate Deputy Minister of Justice. The appellant asserted that the decision was tainted by a reasonable apprehension of bias.
[19] As the point of departure, the court noted at para. 59, that there is a presumption of impartiality of the judiciary that carries considerable weight. The burden is on the party arguing for disqualification to establish that the circumstances justify a finding that the judge must be disqualified from deciding a particular case.
[20] The court observed at para. 62 that “most arguments for disqualification typically begin with an acknowledgment by all parties that there was no actual bias, and move on to a consideration of the reasonable apprehension of bias.” The court explained at para. 65, “[W]hen parties say that there was no actual bias on the part of the judge, they may be conceding that the judge was acting in good faith, and was not consciously relying on inappropriate preconceptions, but was nevertheless unconsciously biased.”
[21] The court continued at para. 66:
To put it differently, in cases where disqualification is argued, the relevant inquiry is not whether there was in fact either conscious or unconscious bias on the part of the judge, but whether a reasonable person properly informed would apprehend that there was. In that sense, the reasonable apprehension of bias is not just a surrogate for unavailable evidence, or an evidentiary device to establish the likelihood of unconscious bias, but the manifestation of a broader preoccupation about the image of justice. [Emphasis omitted.]
[22] And at paras. 60 and 74, the court stated the question as follows, based on the test set out by de Grandpre J. in Committee for Justice and Liberty et al. v. National Energy Board et al., 1976 CanLII 2 (SCC), [1978] 1 S.C.R. 369: “What would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude? Would this person think that it is more likely than not that [the judge], whether consciously or unconsciously, did not decide fairly?”
[23] In the preliminary inquiry proceedings, the judge in this case granted a mistrial after applying the correct test – he focused on the fact that he had heard wiretap evidence that the Crown had not intended to lead in those proceedings, and he noted that a reasonably minded person would not know the inferences he might draw and might apprehend that he could not “disabuse [his] mind of any evidence from the Funes matter”. The fact that he granted a mistrial in those proceedings did not mean that he had to grant a mistrial in the appellant’s case. The two applications did not stand or fall together. Each mistrial application had to be considered separately and in light of the impact of the judge’s involvement in another proceeding on the perceived fairness of the proceeding in question.
[24] While the issue in the preliminary inquiry proceedings was the impact of the trial judge’s having heard the wiretap evidence, the issue in the appellant’s case was the impact of what the trial judge heard during the preliminary inquiry on the perceived fairness of the appellant’s trial. In that regard, the issue was whether a reasonable person would conclude that the trial judge may have been consciously or unconsciously influenced by the evidence he heard in the preliminary inquiry in deciding the appellant was guilty of the firearms offences.
[25] The trial judge, in conducting this assessment, noted that he had made the decision based on the evidence and that he had not had to determine the appellant’s credibility. The issue, however, was not how he had in fact decided the case, but the perception of fairness as a result of what he heard during the preliminary inquiry. Further, the fact that the trial judge had not been required to determine the appellant’s credibility (which arguably might have been seen to have been affected by events at the preliminary inquiry, where the judge exhorted the appellant to answer questions and granted the Crown the right to cross-examine him), was not the main concern. The issue was the impact of the evidence heard during the preliminary inquiry on what became a central issue in the appellant’s trial – the identification of his voice in the wiretap intercepts.
[26] The trial judge recognized that he could not convict the appellant based on Magdangal’s evidence alone. As such, he looked for confirmation of that evidence, which he found in the wiretapped conversations. As he noted in his reasons, he had to be satisfied beyond a reasonable doubt that one of the speakers was the appellant. Two pieces of evidence he relied on were the police officer’s identification of the appellant’s voice and the content of the conversations, which included the fact that the speaker, also named Brian, had acknowledged in one of those recordings that he had been shot.
[27] The appellant did not testify at his trial. However, the trial judge, through his involvement in the preliminary inquiry, had an opportunity to hear the appellant speak. He also had knowledge that the appellant was in fact a “Brian” who had been shot.
[28] In the unusual circumstances of this case, and in particular given the specific issue that fell to be determined in the appellant’s trial, a mistrial ought to have been granted because of the trial judge’s participation in the preliminary inquiry and what had transpired in those proceedings. Again, the issue is not the trial judge’s actual ability to determine the case based only on the evidence at trial, which is not in doubt. Rather, the issue is the perception of fairness, and, as articulated in Wewaykum Indian Band, the “broader preoccupation about the image of justice”. In our view, a reasonable person considering the matter in a fully informed way would apprehend that the trial judge would have been influenced, albeit unconsciously, by the evidence in the preliminary inquiry in his consideration of the appellant’s guilt in the subject proceedings.
[29] For these reasons the appeal is allowed, the conviction set aside and a new trial ordered, before a different judge.
“J. MacFarland J.A.”
“K. van Rensburg J.A.”
“Grant Huscroft J.A.”