Court File and Parties

Ontario Court of Justice

Date: 2018-03-06

Court File No.: Newmarket 16 09143

Between:

Her Majesty the Queen

— and —

Nikita Bukin

Ruling on Mistrial

Before: Justice David S. Rose

Heard on: February 20, 2018

Reasons for Judgment released on: March 6, 2018

Counsel:

• I. Denisov, counsel for the Crown
• A. Little, counsel for the defendant Nikita Bukin

Overview

[1] During final argument Mr. Little applied for a mistrial on the basis of a reasonable apprehension of bias. After hearing oral argument I dismissed that argument with reasons to follow. These are the reasons.

Facts

[2] Mr. Bukin was charged with Impaired and Over 80 from November 26, 2016. The trial evidence was heard on December 11 and 12, 2017. The Crown completed its argument on December 12, but Mr. Little could not complete his, so the matter was marked for continuation, ultimately on February 20, 2018. Mr. Little filed written submissions and the trial evidence transcript on February 16. I reviewed them as soon as they were received. Mr. Bukin's matter was not expected to take all day, and so two other matters were scheduled in my court that day. In a busy courthouse such as Newmarket that is common.

[3] By way of background this case proceeded on February 20 in Courtroom 303 which, for those unfamiliar with the Newmarket Courthouse, is one of the smaller courtrooms. By comparison to other courtrooms in this building Courtroom 303 is about half the size of other trial courts like 200 or 203. The result is the dais in 303 Court is physically nearer to counsel's podium than in the larger courtrooms. It is easier to see what a judge has on the dais in Courtroom 303 than in other courtrooms.

[4] On behalf of Mr. Bukin Mr. Little argued that there were several Charter violations in the case. Whether Mr. Bukin was impaired as that word is known in law was also in issue. The defence case book had 27 cases, and at least a dozen other cases had been handed up loose. His factum was 16 pages. Some of the cases I hear raise narrow legal issues. This was not one of them.

[5] Mr. Little commenced his argument just after court opened at 9:30 am. Because the other two cases on the docket that day were without parties or lawyers I asked Mr. Little to commence his argument. After about one half hour of oral argument Mr. Little said his eyes were drawn to a document that I was reading from on the dais. He said that it looked like a draft judgment, but he couldn't be sure. I told him he needn't worry about what notes I was reading from on the dais.

[6] Mr. Little continued on with oral argument to just after 11am when the other two cases were ready to be heard. I excused Mr. Little and Mr. Bukin until after noon. When we re-convened Mr. Little moved that I recuse myself because there was a reasonable apprehension of bias. Mr. Little argued that when I brought in a document to the dais this morning which had the clear words "Confidential Draft" I had indicated that I had already made my mind up about the case and therefore I should recuse myself, mistrial the case and set the matter down for a new trial. When he raised this issue I told Mr. Little that I had not decided any part of the case, and that the reason I have not told him what is in the document I have on my dais – namely the one marked "Confidential Draft" – because I have no obligation to tell counsel what documents I have here on my dais, their content, or about which case they pertain to. Mr. Little furthered by saying that my failure to tell him what the document is, and what it said, was proof enough of my bias. Mr. Little said that I have an obligation at large to disclose to him what documents I am working from on the dais. He argued that my failure to disclose to the defence what I have on my dais is the "elephant in the room".

The Legal Test

[7] The existence of a reasonable apprehension of bias deprives the adjudicator of jurisdiction. Accordingly the test for its existence is a high one. In Committee for Justice & Liberty v. Canada (National Energy Board), [1976] S.C.J. No. 118, Justice De Grandpre said:

. . the 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. In the words of the Court of Appeal, that test is "what would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly.

[8] This test has been followed consistently in the interim, see R. v. S. (R.D.) (1997), 118 C.C.C. (3d) 353 (SCC), and R. v. Roberts, 2003 SCC 45. As Labrosse J. said in R. v. G.(A.), 130 C.C.C.(3d) 30 (OCA) at par. 42, the jurisprudence speaks of a "strong presumption of impartiality that applies to trial judges…". In R. v. Wills (unreported October 9, 2007) Fuerst J. commented that, "It is unseemly for any trial judge to have to respond to an allegation of actual bias". I would extend that comment to an allegation beyond actual bias to this one where the claim is one of an apprehension of bias. As Mr. Little was at pains to explain, he was not arguing actual bias.

[9] Mr. Little argues that the presence on the dais of a document which has written on it the words "Confidential Draft" would, in the mind of an informed observer, lead to the conclusion that I have made my mind up. This is notwithstanding me informing Mr. Little that I had made no final decision on any of the issues before me, and that I intended to reserve my judgment to consider final submissions before deciding the case. Final reasons for judgment were delivered on March 2, 2018, see R. v. Bukin, 2018 ONCJ 137.

[10] There is authority from Supervisory Courts that there is nothing wrong in preparing draft reasons prior to submissions. In R. v. Chue, 2011 ONSC 5322, Nordheimer J. said:

I do not consider there to be anything wrong with a trial judge sketching out draft reasons either in advance of hearing counsel's submissions or as those submissions are being offered. Given the time pressures on trial judges, that are even more acute in the Ontario Court of Justice, such will often be a necessary course — driven by the need for expedition in the result. As long as the trial judge remains receptive to persuasion by counsel's submissions, no harm is created by the practice and some practical benefit may be gained for the process as a whole. Nonetheless, if that practice is to be adopted, a judge must do so with considerable care for, and appreciation of, the impression it may create if it is not undertaken in an appropriate manner. Of preeminent importance is that a judge must always keep an open mind, both in reality and in appearance.

See also R. v. Purewal, 2014 ONSC 2198 (Durno J.).

Finding

[11] In submissions I told Mr. Little that I would not disclose to him the content of the document he had seen me handle while he was arguing the Charter Application, or even which case it belonged to. He seemed to think that exacerbated the problem. I strongly disagree. One of the functions of judicial independence is surely the ability of a judge to note and document on paper, thoughts and reflections about the evidence, law, and anything else logically connected with the judicial function of deciding a case or part of it. I therefore find, in law, that a trial judge has no obligation to disclose to counsel for any party his or her own notes or preliminary or draft rulings. I would not honour the argument with any further discussion of jurisprudence. As Nordheimer J. said in Chue (supra), the important thing is that the trial judge keep an open mind until submissions are complete. That Mr. Little would not accept my confirmation that I had an open mind during submissions is "unseemly" per R. v. Wills (supra), and the very thing that the presumption of judicial regularity is meant to avoid, see R. v. G.A. (supra).

[12] What also concerns me about this motion is that it smacks of surveillance of a judicial officer by counsel. One of the reasons why the Newmarket Courthouse manages a large volume of criminal trials in a timely manner is that we work with all of the facilities provided. This includes small courtrooms where the bench, counsel, witnesses and staff must all work in very close quarters. It would be highly inappropriate for defence or crown counsel to exploit the close quarters to look at an opposing lawyers' notes. It is no less inappropriate for counsel to do that to a judge.

[13] For these reasons the Application for recusal and mistrial is dismissed.

Released: March 6, 2018

Signed: Justice David S. Rose