RULING ON RECUSAL APPLICATION

Ontario Court of Justice

Date: February 9, 2016

Court File No.: Newmarket

Between:

Her Majesty the Queen

— and —

Kamil Jakub Jaworek

Before: Justice Joseph F. Kenkel

Application and Ruling: February 3, 2016

Written Reasons Released: February 9, 2016

Counsel:

• Ms. Jina Lee, counsel for the Crown
• Mr. Stefan Dimitrijevic, counsel for the defendant

KENKEL J.:

Facts

[1] Halfway through the second day of trial on a charge of assault, counsel for the accused advised the court that his client has a conviction for a related offence. He explained that his client had just remembered that the prior matter had been before me and he'd confirmed that by checking the court records over lunch. The defence submitted that a judge who has heard a plea with respect to an accused cannot preside over any subsequent trial in relation to that person. The defence submitted that I must stop the trial, recuse myself and declare a mistrial.

[2] These reasons discuss the test for reasonable apprehension of bias where it's alleged that prior dealings with the accused might prevent a trial judge from being impartial.

Reasonable Apprehension of Bias

[3] The accused does not allege actual bias. He submits that the fact of the prior plea gives rise to a reasonable apprehension of bias.

[4] Proof of actual bias is not required, the appearance of bias is sufficient. "Not only must justice be done, it must also be seen to be done." R. v. Sussex Justices, Ex Parte McCarthy, [1923] All ER Rep 233.

[5] "The test for assessing a reasonable apprehension of bias claim is whether an informed person, viewing the manner realistically and practically and having thought the matter through, would think that the decision-maker would not decide the matter fairly. The test requires a two-part analysis of objectivity:

• the person considering the alleged bias must be reasonable and invested with knowledge of all of the relevant circumstances, including judicial traditions of integrity and impartiality,

• and the apprehension of bias itself must be reasonable based on what is observed."

R. v. Mallory, 2007 ONCA 46, [2007] OJ No.236 (CA) at para. 318; Yukon Francophone School Board, Education Area #23 v. Yukon (A.G.), 2015 SCC 25, [2015] SCJ No.25 at para. 37

[6] The onus of demonstrating bias is on the person who alleges it. R. v. R.D.S., [1997] SCJ No.84 at para. 114

[7] The threshold for a finding of real or perceived bias is high. "It is a finding that must be carefully considered since it calls into question an element of judicial integrity. Indeed an allegation of reasonable apprehension of bias calls into question not simply the personal integrity of the judge, but the integrity of the entire administration of justice … Where reasonable grounds to make such an allegation arise, counsel must be free to fearlessly raise such allegations. Yet, this is a serious step that should not be undertaken lightly." R. v. R.D.S. at para. 113

[8] The high threshold is consistent with the presumption that judges will carry out their oath of office and decide cases impartially. R. v. R.D.S., [1997] SCJ No.84 at para. 117

Recusal for Past Dealing with the Accused or Case

[9] "It is inevitable that accused persons will appear before judges who know of their criminal histories. The community rightly trusts that such information will play no part in judicial decision making. Accordingly, at least in the normal course, mere knowledge of an accused's criminal record does not automatically disqualify a judge from presiding at a trial." R. v. Rathgeber, [2010] SJ No.227 (CA) Leave Refused [2010] SCCA No.228 at para. 16

[10] Every day judges in criminal trial courts are required to disregard inadmissible evidence, evidence that has not survived Charter scrutiny, even confessions that haven't been proved voluntary. "Judges are routinely called upon to disabuse their minds of evidence which they have heard but which, as a matter of law, is not admissible in the trial before them. It is fundamental to their role to decide the case only on the evidence properly admissible in that case." R. v. Novak, [1995] BCJ No.1127 (CA) at para. 8; R. v. S.S., [2005] OJ No.142 (CA) at para. 3.

[11] The fact that a judge has made adverse credibility findings against an accused in a prior trial is not sufficient to create a potential for bias. Something more is required to show a predisposition with respect to the accused's credibility so as to amount to pre-judgement. R. v. Novak at para. 7

[12] Courts have found the following circumstances insufficient to require recusal:

• Adverse credibility finding against an accused in a trial voir dire. R. v. G.H., [2002] OJ NO.3635 (CA) at para. 6

• Adverse credibility finding in a prior related proceeding. Arthur v. Canada, [1992] FCJ No.1000 (FCA)

• The fact that a related prior criminal record was revealed to the trial judge during pre-trial motions. R. v. B.G., [2003] OJ No.3976 (SCJ) at paras. 8-9

• Hearing potentially prejudicial evidence during a bail review prior to trial. R. v. Perciballi, [2001] OJ No.1712 (CA) at para. 21

• Hearing a guilty plea from a co-accused and then proceeding to hear the trial. R. v. G.H., [2002] OJ No.3635 (CA) at para. 8 (Although the Court of Appeal noted that the better practice is to refer the plea to another judge)

• Holding a second trial in relation to the same accused immediately after a first trial that resulted in conviction. R. v. Novak, [1995] BCJ No.1127 (CA) at paras. 7-10.

Application of the Principles to this Case

[13] This trial began on November 27, 2015 and continued February 3rd, 2016. On February 3rd, after lunch, defence counsel advised that his client has a prior criminal conviction from August of 2011. The matter involved a guilty plea to a related offence which the defence named. The defence explained that the matter was long enough ago that the accused had not realized it might be the same judge until half way through the second day of trial. When they checked over lunch they realized his suspicion was correct.

[14] An informed observer would understand that judges in criminal courts regularly deal with persons who have appeared before them before. Judicial principles of integrity and impartiality apply. There's nothing in the hearing of a plea, four and a half years earlier that could reasonably give rise to an apprehension of bias in this trial.

[15] If there was anything unusual about the prior offence that caused particular concern in relation to this case it would have been easy for the defence to request a different judge when they obtained a trial date from the trial co-ordinator. While not every scheduling request can or should be granted, the fact that the defence did not make that inquiry confirms there's no special concern.

[16] It's unfortunate that Mr. Dimitrijevic chose to advise the court of the prior record and name the offence, but that action of counsel does not itself create a reasonable apprehension of bias or require a mistrial. The conviction mentioned does not go to credibility and using it for any other purpose would be contrary to fundamental evidentiary rules.

Conclusion

[17] The applicant has failed to prove that bias could reasonably be apprehended in the circumstances of this case. The application is dismissed.

Reasons Released February 9, 2016.

Hon. Justice Joseph F. Kenkel