COURT OF APPEAL FOR ONTARIO

DATE: 20220601 DOCKET: C65361

MacPherson, Tulloch and Lauwers JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

Andrew Cowan Appellant

Counsel: James Lockyer and Gabriel Gross-Stein, for the appellant Elise Nakelsky, for the respondent

Heard: May 10-11, 2022

On appeal from the conviction entered on August 23, 2017 by Justice Kelly A. Gorman of the Superior Court of Justice, sitting with a jury.

MacPherson J.A.:

A. Introduction

[1] The appellant was convicted of second degree murder following a trial by judge and jury. The trial judge imposed a sentence of life imprisonment with a 10-year period of parole ineligibility.

[2] The appellant advances five grounds of appeal against his conviction. The principal ground of appeal, anchored in a fresh evidence application, is that there was a miscarriage of justice at his trial because there is a reasonable apprehension of bias relating to the trial judge.

B. Facts

(1) The parties and events

[3] The appellant and Edward Witt had been best friends for many years. They often gambled together at the Windsor Casino, as they did on Saturday, October 20, 2012. They were there for several hours and each drank seven beers. Mr. Witt lost about $5,500.

[4] Shortly after midnight, the two men left the casino together. The appellant drove and Witt was the passenger. At 1:02 a.m., the appellant texted a friend he had briefly dated:

Ed and I are considering suicide tonight. Just want you to know I loved you. Tell my brother he’s the executor at Heinz. See you in heaven, babe.

[5] On the outskirts of Leamington, at 1:40 a.m., the appellant purposely drove the truck off the road at speeds between 122 and 154 kilometers per hour, ascended a steep embankment, and flew through the air. The truck crashed into the second floor of a nearby building and fell to the ground.

[6] Mr. Witt died from his injuries six days later. The appellant survived but suffered serious brain injuries.

(2) The trial

[7] In August 2017, the appellant was tried for first degree murder before the trial judge, sitting with a jury, at the Superior Court of Justice in Windsor.

[8] The Crown argued that the appellant was depressed and decided to take his own life and to kill Witt at the same time. The defence submitted that Witt died as a result of a suicide pact that he and the appellant entered into that night and the appellant should therefore be acquitted.

[9] On August 23, 2017, after two days of deliberation, the jury returned a verdict of guilty of second degree murder. On December 12, 2017, the trial judge imposed a sentence of life imprisonment with a 10-year period of parole ineligibility.

C. Issues

[10] The appellant advances five grounds of appeal against his conviction:

1. There is a reasonable apprehension that the trial judge was biased and this resulted in a miscarriage of justice.
2. In her jury charge, the trial judge misdirected the jury on the ‘suicide pact’ defence.
3. In her jury charge, the trial judge misdirected the jury on the burden of proof.
4. The Crown improperly invited the jury to speculate about the appellant’s motive for killing himself and Witt.
5. The trial judge erred by refusing to let Dr. Ahmad testify about the appellant’s inability, caused by his injuries, to testify at the trial.

D. Analysis

(1) The reasonable apprehension of bias issue

[11] The appellant contends, on the basis of fresh evidence that came to light after the jury’s verdict but before the sentence was imposed, that he can establish that there is a reasonable apprehension of bias in this case relating to the friendship between the trial judge and Crown counsel.

[12] The appellant makes two separate arguments relating to this ground of appeal: (a) the trial Crown counsel made inadequate disclosure to defence counsel of the nature and extent of his friendship with the trial judge, thereby preventing defence counsel from properly considering whether to object to the trial judge presiding at the trial; and (b) the trial judge’s decision to attend a post-conviction, but pre-sentence, ‘drinks’ meeting with the prosecution team at a local restaurant immediately after the verdict was announced, and the trial judge’s decision immediately thereafter to go to dinner with only the trial Crown, taken alone or together, rises to the level of establishing a reasonable apprehension of bias.

[13] I will consider these two submissions in turn.

(a) The Crown disclosure on the trial judge/Crown counsel friendship issue

[14] The Crown and the trial judge met during their first appearance on the same case in 2012. Since then, the Crown has attended social functions at the trial judge’s home on seven or eight occasions and is a regular fixture at her family reunions.

[15] The Crown disclosed this friendship to the defence as soon as he learned that the trial judge would be presiding. He did so twice more before trial and raised it on the record after the trial judge’s opening instructions to the jury. Counsel for the defence consented to proceeding before the trial judge.

[16] However, unbeknownst to the appellant, the Crown and the trial judge had agreed, because of their friendship, not to appear on the same case after an appeal in 2016, less than two years before the appellant’s trial. Further, the Crown did not tell the appellant that he attempted to have the case reassigned to another Crown after learning that the trial judge would preside.

[17] The appellant argues that the Crown’s failure to disclose the extent of his friendship with the trial judge, especially when considered against their agreement not to appear on the same case, occasioned a miscarriage of justice.

[18] I agree. In my view, the Crown was duty-bound to disclose the full extent of his friendship with the trial judge, including their agreement, because the information was relevant to the appellant’s ability to make a full answer and defence to the very serious charge against him. The Crown’s failure to fully inform the defence jeopardized the appellant’s right to a fair trial.

[19] Crown counsel, as the agent through whom the state pursues criminal justice, occupies a distinct role in the criminal justice system. In light of this office, the Crown must exclude any notion of winning or losing from its prosecutions: Boucher v. The Queen, [1955] S.C.R. 16, at p. 24. The Crown has “a constitutional obligation to act independently of partisan concerns and other improper motives”: R. v. Cawthorne, 2016 SCC 32, at para. 24.

[20] This single-minded duty to the interests of justice manifests itself in “a general duty to disclose all relevant information” to the defence: R. v. Stinchcombe, [1991] 3 S.C.R. 326, at pp. 340-41 (emphasis in original). As this duty results from the accused’s right to make a full answer and defence to the charges against them, it “includes not only information related to those matters the Crown intends to adduce in evidence against the accused, but also any information in respect of which there is a reasonable possibility that it may assist the accused in the exercise of the right to make a full answer and defence”: R. v. McNeil, 2009 SCC 3, at para. 17.

[21] In my view, the potential for a biased trial is “relevant information” that could have assisted the appellant in making a full answer and defence: see e.g., R. v. Curragh Inc., [1997] 1 S.C.R. 537, at para. 63; R. v. Esseghaier, 2021 ONCA 162, at para. 26. The Crown’s agreement not to appear before the trial judge and his attempts to have the file reassigned indicate a real risk that the appellant was stepping on to a tilted field. The fairness of his trial depended on him knowing this disadvantage. The Crown should have informed him. He failed to do so and lost sight of his responsibility to the administration of justice in the process.

[22] The respondent relies on Wellesley Lake Trophy Lodge Inc. v. BLD Silviculture Ltd., 2006 BCCA 328, to argue that the Crown is not bound to disclose a prior relationship with the trial judge. In that case, Low J.A. found that no apprehension of bias arose from counsel participating in group bike rides with the trial judge. Their friendship was simply not enough to overcome the strong presumption of judicial impartiality: at para. 17. Accordingly, says the respondent, there is nothing to justify disclosure here.

[23] Respectfully, this case does not assist the respondent. The explicit agreement between the Crown and the trial judge, which they both recognized, suggests a real threat of bias that is absent from the mere friendship in Wellesley Lake; it indicates the Crown’s understanding that his presence before the trial judge could jeopardize the appellant’s right to a fair trial. This risk was never communicated to the appellant. Instead, he was lulled into believing that the fairness of his trial was not in doubt.

[24] Accordingly, the appellant’s conviction is the result of a miscarriage of justice. It must be set aside.

(b) The post-conviction drinks/dinner issue

[25] In its factum Re: Fresh Evidence, the Crown accurately and fairly sets out the facts that give rise to this ground of appeal:

3. The troubling conduct in this case included the following:
   • Almost immediately after the verdict and jury recommendations on sentence were completed, the judge contacted the crown to go for a drink.
   • Upon arriving at the lounge, the judge suggested that they move to a table by the window.
   • During drinks, the judge twice commented “as long as Mr. Ducharme [defence counsel] doesn’t walk in.” She also reported that she had asked other judges about Mr. Ducharme before the trial began.
   • They briefly discussed the case, including the judge and crown agreeing that the jury was intelligent and the crown remarking that the verdict was fair. The judge also poked fun at the crown for not being able to control his facial expression in court.
   • Drinks with the judge made the articling student uncomfortable, such that she immediately reported it to her principal the next morning.
   • It was not until the first appearance in court after disclosure of the post-verdict drinks that the crown disclosed to defence counsel that he and the judge went to dinner at the sports bar at the judge’s hotel after drinks were over.
   • Based on these events, the crown was suspended for ten days without pay. After arbitration, his suspension was reduced to five days.
4. None of these facts are disputed.

[26] The test for reasonable apprehension of bias is:

[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. … [T]he test is “what would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude. …”

See R. v. S. (R.D.), [1997] 3 S.C.R. 484, at p. 502, citing Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369, at pp. 394-95, per de Grandpré J. (dissenting, but not on this point).

[27] In my view, when one measures the nature and number of undisputed facts as set out above against this test, the legal phrase that comes to mind, immediately for me, is res ipsa loquitur: the reasonable apprehension of bias speaks for itself.

[28] The appellant’s trial related to the most serious offence in the Criminal Code, R.S.C. 1985, c. C-46, – murder. The trial had lasted three weeks. The trial was not over – the trial judge and counsel had just fixed a date for the sentence component of the trial. Within minutes of the jury’s verdict, the trial judge called Crown counsel to suggest they meet for a drink. She did not invite anyone else. The trial judge then agreed to join the Crown, a Crown articling student and a senior police officer involved in the trial at a nearby restaurant. Defence counsel was not invited or present.

[29] Once together inside the restaurant, the trial judge referred to the absence of defence counsel at least twice, whether jokingly or not. The trial was discussed, albeit briefly. After the drinks meeting broke up, the Crown called the trial judge and invited her to dinner. The trial judge accepted and they went to a different restaurant. The four-person drinks meeting, in a public setting, lasted about an hour. The two-person dinner, in a public setting, lasted about two hours.

[30] Returning to the S. (R.D.) test for reasonable apprehension of bias, this constellation of facts over a three-hour period would inevitably lead the “reasonable and right minded person” to conclude that the trial judge might have been biased in the very serious trial that had just finished.

[31] Whether the trial judge was actually biased or not is not the issue. The mere appearance of bias is enough to satisfy the test. In this case, it is difficult to imagine how the “reasonable and right minded person” would dispel the spectre of bias where the trial judge shares drinks and a meal with the prosecution team minutes after the jury entered a conviction on a very serious criminal charge.

[32] Lerren Ducharme (no relation to defence counsel Patrick Ducharme) began work as an articling student at the Crown office on July 31, 2017. The appellant’s trial started the same day. She attended the trial until the jury announced its verdict on August 23, 2017. She was invited to and attended the ‘drinks’ meeting that night. She is therefore an informed person, viewing the matter realistically and practically – and having thought the matter through.

[33] In the context of this appeal, Ms. Ducharme prepared an affidavit. She was cross-examined on this affidavit. In response to a question, she said:

I knew that there was something odd about the circumstances for sure because the case had not been completed. And I also knew that the trial judge would be determining the parole ineligibility of the accused. So that definitely was uncomfortable and felt wrong for me.

[34] Ms. Ducharme was right. I would allow the appeal on this ground as well.

E. Disposition

[35] In light of my conclusion on the reasonable apprehension of bias issue, it is not necessary to consider the other four grounds of appeal and I decline to do so. I note that on one of those issues, the burden of proof issue, the court did not call on the Crown to respond.

[36] I would allow the appeal and order a new trial.

Released: June 1, 2022 “J.C.M.” “J.C. MacPherson J.A.” “I agree. M. Tulloch J.A.” “I agree. P. Lauwers J.A.”