Court File and Parties

Court File No.: 12-962 Orangeville Date: July 8, 2013 Ontario Court of Justice Central West Region

Between: Her Majesty the Queen — and — Manish Bhatti

Before: Justice Richard H.K. Schwarzl

Heard on: July 8, 2013 Reasons released on: July 8, 2013

Counsel:

• Ms. Liana Marcon for the Crown
• Ms. Susan Von Achten for the Accused

SCHWARZL, J.:

1.0: INTRODUCTION

[1] Mr. Manish Bhatti is charged with a single count of sexual assault. Today is the first of a multi-day trial. Ms. Von Achten is counsel for Mr. Bhatti; Ms. Marcon is counsel for the prosecution.

[2] Prior to arraignment, Mr. Bhatti brought an application for me to disqualify myself as the trial judge because he believes that he will not receive a fair trial in front of me. He does not assert any actual bias, but rather that there is a reasonable apprehension of bias for two reasons. The first reason is the nature of my past association with his lawyer, Ms. Von Achten, when I was crown counsel and later when I was a judge. The second reason is the lengthy professional relationship I had with crown counsel, Ms. Marcon, as we were colleagues in the same Crown Attorney's office for nearly ten years prior to my appointment as a Provincial Court judge in 2009.

[3] Mr. Bhatti relies on the contents of a letter from Ms. Von Achten dated July 2, 2013 in which she set out her reasons why she felt I would not fairly entertain the various points of the parties and the applicable law with an open mind. The reasons given relate solely with her prior professional associations with me. He also relied on some emails between counsel exchanged after July 2, but they contain no information relevant to the reasons for the apprehended bias.

[4] In her submissions Ms. Von Achten did not introduce any other reasons beyond those set out in her client's affidavit. She focussed her position not on any real bias, but rather on what she submits is a reasonable apprehension of bias. In her submissions, Ms. Marcon argued that this application does not meet the required legal test for a disqualification application to succeed.

2.0: APPLICABLE LEGAL PRINCIPLES

[5] A disqualification application does not constitute an attack on the personal integrity of the judge, but rather involves counsel fulfilling their obligations to their clients and to the administration of justice. Having said this, counsel should be very specific as to what facts or actions they are suggesting establishes that a disqualifying event has occurred.

[6] There is a strong presumption that judges are impartial. Substantial grounds are required to meet the standard of a reasonable apprehension of bias: Wewaykum Indian Band v. Canada, 2003 SCC 45, [2003] S.C.J. No. 50.

[7] In Wewaykum, the Supreme Court described the "essence" of impartiality as involving an "open mind". They stated:

The essence of impartiality lies in the requirement of the judge to approach the case to be adjudicated with an open mind. Conversely, bias or prejudice has been defined as:

a leaning, inclination, bent or predisposition towards one side or another or a particular result. In its application to legal proceedings, it represents a predisposition to decide an issue or cause in a certain way which does not leave the judicial mind perfectly open. Bias is a condition or state of mind which sways judgment and renders a judicial officer unable to exercise his or her functions impartially in a particular case.

[8] The test to be met by the applicant is whether an informed person, viewing the matter practically and realistically, would conclude that it is more likely than not that the judge would not decide the matter fairly: Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369.

[9] To succeed in a disqualification application, there must be convincing evidence as the threshold to find real or reasonably perceived bias is high: R. v. R.D.S., 118 CCC (3d) 353 (SCC). The applicant must prove his application on a balance of probabilities: Peart v. Peel Regional Police Services Board, 43 C.R. (6th) 175 (Ont. C.A.).

3.0: ANALYSIS

[10] At the outset, I give no credence to the assertion that my past professional relationship with Ms. Marcon would create a reasonable apprehension of bias. A significant connection between a judge and counsel will be necessary for a disqualifying event to be established. Having been colleagues in the same office for years, without more, is insufficient. Indeed, Ms. Von Achten did not raise my prior association with Ms. Marcon in her letter of July 2, 2013 nor did she make any submissions in this regard. I will therefore focus my ruling on the ground raised concerning my prior dealings with Ms. Von Achten as both counsel and as a judge.

[11] In her letter of July 2, Ms. Von Achten raised issues with me both as counsel and as a judge. With respect to our association as counsel, she points out that we had many cases together over many years. In most of those cases she points out that we were in legal conflict. This is not surprising since we were opposing counsel. She also pointed out that I appeared irritated with her over a mistrial and the potential use of certain demonstrative aids during a particular trial. Irritation, is of course, not the same as being irrational, unfair or unreasonable. Ms. Von Achten knows that in my association with her as counsel that while we were rarely in agreement on outcomes, we shared a mutual professional respect. In this application, Ms. Von Achten does not allege that I ever treated her or her clients unfairly as counsel.

[12] With respect to my association with Ms. Von Achten as a judge, she raised two matters which she says raises a reasonable apprehension of bias in this case. First, she pointed out in a very non-specific manner that I had made evidentiary rulings at a sexual assault preliminary hearing that contained an interpretation of law and evidence different from hers and revealed "the same approach he had taken as a Crown." She also raised my comments made to her at a judicial pre-trial where I purportedly questioned her preparedness and commitment to a case. These are the bases upon which Mr. Bhatti says he believes I will not be impartial or will be biased against him.

[13] Impartiality reflects a state of mind in which the judge is disinterested in the outcome and is open to persuasion by the evidence and submissions. In contrast, bias reflects a state of mind that is closed or predisposed to a particular result on material issues.

[14] None of the reasons given by Mr. Bhatti through Ms. Von Achten's letter of July 2 would cause an informed person to conclude I would not decide this case fairly. Each case must be viewed on its own: rulings made one way at one trial may be made differently at another – the applicable law remains constant in all cases, but the evidence is always unique. Expecting counsel to be ready and to ensure the best interests of the client are maintained as a priority does not reflect partiality or prejudice but does demonstrate a fair concern that a given party is in the best position to advance their case. The fact that a judge has had prior dealings with counsel that are of a negative nature is not sufficient to require a disqualification.

[15] In my view, an informed and objective person aware of all of the reasons and grounds relied upon by Mr. Bhatti would not conclude that I would more likely than not decide this case unfairly. There is no convincing evidence to indicate that I will not approach Mr. Bhatti's case with an open mind and fairness to all parties.

[16] Mr. Bhatti's application for me to disqualify myself as the trial judge is dismissed.

ORIGINAL SIGNED BY JUSTICE R.H.K. SCHWARZL

Richard H.K. Schwarzl, Justice of the Ontario Court of Justice