Court File and Parties

Court File No.: Niagara Falls: 150238 Ontario Court of Justice

Between: Her Majesty the Queen And Xiaoquan Shan

Before: Justice of the Peace S. Lancaster

Heard: October 14, 2016

Reasons for Judgement Released: October 14, 2016

Notice of Motion: Recusal / Mistrial / Costs

Charge: Stunt Driving

Legislation: Highway Traffic Act, Section 172(1)

Counsel:

• N. Isak, Crown Prosecutor
• R. Tatangelo & F. Alfano, Defense Agents

Issue

[1] The court has received a Notice of Motion in relation to Xiaoquan Shan, a motion to recuse and an order declaring a mistrial with costs assigned to the Crown. The motion outlines four grounds, specifically prosecutorial misconduct in relation to disclosure vetting, disclosure content and trial conduct, along with the Justice of the Peace's misapprehension regarding the disclosure material subject matter.

[2] The documents and viva voce submissions tendered to the court by both the prosecution and the defence speak for themselves. My s.7 Charter motion decision was provided in writing so I believe the record is clear. (R. v. Shan)

Ruling Re: Recusal

[3] I will speak to the issue of recusal first (Ground #4). With the judicial oath comes a strong presumption of judicial impartiality. The threshold for a finding of either real or perceived bias is high, and the presumption of impartiality can be rebutted with the burden resting with the party alleging bias. (Yukon Francophone School Board)

[4] Public confidence in the legal system is based on the belief that those who adjudicate cases do so without bias or prejudice, and must be perceived to be doing so. Trials must be fair and appear to be fair to the informed reasonable observer. That 'reasonable person' is an informed person, with knowledge of all the relevant circumstances, including the traditions of integrity and impartiality. The test takes into account the presumption of impartiality and "a real likelihood or probability of bias must be demonstrated …" (R. v. S (R.D.)). A mistrial is considered when "… there is a 'real danger' of prejudice to the accused or danger of a miscarriage of justice". R. v. Toutissani notes, a mistrial "should be granted only as a last resort, in the clearest of cases and where no remedy short of that relief will adequately redress the actual harm occasioned". Case law notes that " … the threshold for a finding of real or perceived bias is high".

[5] R. v. Blackwood enumerates the principles in relation to a motion for recusal, "the test requires demonstration of serious grounds on which to base the apprehension …".

[6] The Applicant alleges an apprehension of bias in that "The presiding Justice of the Peace misapprehended an earlier motion for production and motion for third party records", specifically, that "The defence sought portions of the manual, not the entire manual" and submits that the erroneous denial of these materials has substantially prejudiced the defence …". (Applicant Motion – Ground 4).

[7] During the trial and the disclosure motion, the radar device has been referred to as: "operating procedures", "User Manual and Installation Guide", "manufacturer's manual", "radar manual", "the manual", and "operational manual". Page 5 and 18 respectively of the Applicant's material on the disclosure motion notes, "… the Applicant has been denied the following materials: 1) "the complete operational manual related to the Genesis II speed measuring device". It further notes: 2) "that the operational manual, portion of the operational manual related to operational and testing requirements and interference, and the Global Positing Data should be disclosed…". While at trial the Applicant argued on page 48, about line 18 "…We were not asking for the entire manual", the Applicant's material on the disclosure motion clearly indicates otherwise. I don't believe that this court misapprehended the evidence that the requested disclosure documentation was "the complete operational manual" and portions thereof.

[8] Returning to the arguable ground for disqualification, the Applicant has not met its burden to satisfy the high threshold to justify disqualification. The test to meet is to prove "… that the informed, reasonable and right-minded person would think that it is more likely than not that the judge, whether consciously or unconsciously, would not decide fairly".

[9] Grounds 1 & 2 relate to disclosure. While I won't revisit in detail the s.7 Charter motion or judgement, I will reiterate that the Applicant had 10 months prior to trial to address any disclosure concerns. Early on (some 10 days after initial disclosure – May 2015) the Applicant was afforded the opportunity to view the "full radar manual" with an aim to identify potential relevant disclosure and chose not to respond, clearly not in keeping with the Applicant's obligation to actively pursue disclosure. Portions of the disclosed officer's handwritten duty notes that had been redacted incorrectly were subsequently provided to the Applicant in January, 2016 in the form of typed notes, including an explanation of short forms or acronyms used.

[10] The disclosure motion was subject to an 'O'Connor' 3rd party records application hearing and was addressed by the court's ruling. The Applicant failed to meet the threshold of "likely relevant" and the motion was dismissed.

Ruling Re: Prosecutorial Misconduct

[11] The Applicant alleges prosecutorial misconduct "by vetting the file erroneously". If the Applicant is referring to the initial redacted duty notes, there is no evidence to support the contention that the error was intentional or for some nefarious purpose. The prosecution corrected the error by providing transcribed notes 2 months before the s.7 motion hearing, and some 7 months prior to the trial commencement.

[12] The Applicant submits that the inconsistencies in the disclosed officer's notes (i.e., reference to 2 offence locations) compromised the defence in a way they could not recover from. The Applicant submits it was this inconsistency that led to the GPS data request, and I would suggest perhaps even the request for the Intake Court transcripts to confirm the inconsistency and request that the Information be quashed for a flaw. The Respondent submits this was a defence tactic to seek and exploit a technical flaw and dismissal.

[13] The Applicant had many months to clarify the inconsistency, and chose to raise it only during cross examination, only to find out that the notes regarding the '7th Street' location related to another enforcement matter. The defence enquiry at cross examination, especially given the reference to the offence location on the Information, summons and typewritten notes related to the same Lincoln location, only different from the original duty notes, appeared opportunistic. There were several opportunities for the defence to clarify this inconsistency, or if completely taken aback at trial could have requested an adjournment, rather than seek a mistrial at this late date, or tendering 4 motions to this court, including the quashing of the information, seeking a mistrial and recusal – all serious and extreme remedies.

[14] There is no evidence that the Applicant's defence was prejudiced that would impair trial fairness. Following the disclosure motion hearing, the court granted the Applicant's request for an adjournment to the next trial date (3 months later). Combined with the Applicant's trial objections and cross examination this motion has the appearance of a collateral attack on this court's ruling on disclosure. An Appeal is the proper forum to challenge this court's ruling, not a motion for a mistrial Order.

[15] Ground 3 alleges prosecutorial misconduct in relation to identifying to the court that the Applicant possessed a copy of the radar manual, later characterized as defence "work product", that it had been denied through disclosure. Notwithstanding the argument regarding confidentiality the Crown owes to the Applicant, if any, whether the noted manual as a third party record qualifies as "work product", or the prosecutors intention to prevent the court from being potentially mislead as to any Applicant prejudice in not having the manual, reference to this manual has no bearing or impact on this court's adjudication of the case, or trial fairness. The trial evidence alone will inform my decision and I will articulate my reason for judgement at the trial conclusion – there has been no evidence tendered regarding prejudice to the Applicant's trial fairness.

Ruling Re: Costs

[16] In addressing the issue of costs in relation to the alleged prosecutorial misconduct, R. v. Fercan Developments Inc. provides "the standard of misconduct for cost awards generally" and notes that to justify cost awards the misconduct must be "oppressive or improper", "remarkable", "reprehensible". "It is only where the accused can show a 'marked and unacceptable departure from the reasonable standards expected of the prosecution that a costs order will be made", and that the "standard represents a stringent threshold … generally require that the Crown exhibit a flagrant or marked departure from the norm".

[17] The Respondent submits that the initial disclosure of the officer's duty notes were incorrectly redacted, that the error was unintentional and that the error was remedied by providing additional disclosure in advance of the disclosure motion and the trial. For those reasons, and the reasons noted above regarding the Respondent alerting the court to the manual in the Applicant's possession, and the Applicant's failure to show that the Crown's conduct was a 'marked and unacceptable departure' from reasonable conduct, no cost will be awarded against the Crown Respondent.

Judgement

[18] For the reasons noted above for each ground and as the Applicant has not met the threshold required for the remedy sought, namely recusal, mistrial and costs, the motion is dismissed.

Cases Cited

1. R. v. Shan, 2016 ONCJ 289
2. Yukon Francophone School Board, Education Area #23 v. Yukon (Attorney General), 2015 SCC 25
3. R. v. S (R.D.), [1997] 3 S.C.R. 484
4. R. v. Toutissani, 2007 ONCA 773
5. R. v. Blackwood, 2010 ONSC
6. R. v. Fercan Developments Inc., 2016 ONCA 269

Signed: Stephen Lancaster, Justice of the Peace

Released: October 14, 2016