WARNING

The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and

(b) on application made by the victim, the prosecutor or any such witness, make the order.

486.6 OFFENCE — (1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

Ontario Court of Justice

Date: 2022 12 05 Court File No.: Brampton 3111 998 20 6980

BETWEEN:

HIS MAJESTY THE KING

— AND —

S.K.

Before: Justice G.P. Renwick

Heard on: 02 December 2022 Reasons for Judgment released on: 05 December 2022

Counsel: S. Burton, for the Crown S.K., the Defendant, representing himself

Ruling on Apprehension of Bias Application

RENWICK J.:

Introduction

[1] The Defendant faces two counts (sexual assault and sexual exploitation) relating to an alleged hug and kiss of a young person when he was her high school principal.

[2] The Defendant has been representing himself since 28 March 2022 after terminating his counsel following his initial s. 11(b) Charter Application for delay, which I dismissed on 25 February 2022.

[3] As the trial judge I have had the matter proceed before me to assist the parties with disclosure issues and to hear various pre-trial Applications.

[4] By way of chronology, the parties have appeared before me on the following dates since the matter was re-set down for trial on 01 April 2022:

i. 12 October 2022 – case management discussions (1.0 hrs); ii. 24 October 2022 – case management discussions (0.5 hrs); iii. 31 October 2022 – case management discussions (0.5 hrs); iv. 02 November 2022 – Application for Directions: are emails “records”; – Application for Directions to add materials to above Application (full court day); v. 03 November 2022 – case management discussions (0.5 hrs); vi. 15 November 2022 – aborted s. 11(b) re-hearing date; case management discussions (1.5 hrs); vii. 21 November 2022 – Application for Directions re: “records” (1.5 hrs); viii. 25 November 2022 – s. 11(b) re-hearing (full court day); and ix. 02 December 2022 – Apprehension of Bias Application (full court day).

[5] At issue on this Application are the following questions:

i. What is the conduct at issue; ii. What is the test for recusal; and iii. Has the test been met in this case.

Governing Jurisprudence

[6] Judges are expected to be impartial. This is the cornerstone of a functional democracy and a fair justice system. Actual bias and reasonable apprehensions of bias undermine public confidence in the justice system.

[7] A reasonable apprehension of bias arises if a reasonable person, viewing the matter realistically and practically and having thought the matter through, would conclude that the judge would consciously or unconsciously fail to decide the matter impartially. [1]

[8] The test for an apprehension of bias derives its pedigree from several cases of the Supreme Court, as referenced in R. v. R.D.S. In respect of the test, Justice de Grandpré in a case called, Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369, stated:

The grounds for this apprehension must, however, be substantial and I ... refus[e] to accept the suggestion that the test be related to the "very sensitive or scrupulous conscience". [2]

[9] The Ontario Court of Appeal has confirmed this test:

This assessment is made from the perspective of a reasonable observer present throughout the trial: R. v. Stucky (2009), 2009 ONCA 151, 240 C.C.C. (3d) 141 (Ont. C.A.), at para. 72. Isolated expressions of impatience or annoyance by a trial judge as a result of frustrations, particularly with counsel, do not in themselves create unfairness.

An examination of whether a trial judge has unduly intervened in a trial begins with the recognition that there are many proper reasons why a trial judge may intervene through comments, giving directions or asking questions during the course of a trial. A trial judge has an inherent authority to control the court's process and, in exercising that authority, a trial judge will often be required to intervene in the proceedings: R. v. Felderhof (2003), , 68 O.R. (3d) 481 (C.A.), at para. 40. [3]

[10] Given the presumption of judicial impartiality, an allegation of bias (actual or perceived) requires substantiation. Cogent evidence is required. [4] Positive evidence of bias is neither ambiguous nor neutral.

[11] Implicit in the presumption of judicial neutrality are the observations of Justices Gonthier and La Forest:

Often the most significant occasion in the career of a judge is the swearing of the oath of office. It is a moment of pride and joy coupled with a realization of the onerous responsibility that goes with the office. The taking of the oath is solemn and a defining moment etched forever in the memory of the judge. The oath requires a judge to render justice impartially. To take that oath is the fulfilment of a life's dreams. It is never taken lightly. Throughout their careers, Canadian judges strive to overcome the personal biases that are common to all humanity in order to provide and clearly appear to provide a fair trial for all who come before them. Their rate of success in this difficult endeavour is high. [5]

Discussion

General Observations

[12] At the outset, I must confess my reticence to be in the position of adjudicating upon my comments which are a large part of this Application. Equally unseemly perhaps from the Defendant’s perspective, is the prosecutor’s opposition to the motion. Trial adjudication is mostly a zero-sum enterprise. There will usually be one party who prevails in a given argument and another who fails. Naturally, but not always, even on the issue of bias, the parties’ interests collide. In my view, appellate courts are in the best position to determine these Applications. After a trial, a Defendant (and others) will be in the best position to take a holistic view, consider the complete context, and determine whether or not such an Application is warranted.

[13] To my understanding, the law requires that I decide this issue from the perspective of the reasonably informed observer, apparently without regard for the views of the Defendant. In resolving this Application, I intend to consider the views of the reasonably informed observer, who is also aware that at least one member of the public, the Defendant, is convinced that the court is biased against him.

The Basis for Complaint of Bias

[14] The Application for the court to disqualify itself appears to have its genesis in an email sent from the Defendant’s former counsel to the Defendant prior to the first hearing of his s. 11(b) Application. [6] In an email dated 07 February 2022, former counsel wrote:

Please see attached the Crown’s response to our s. 11(b) factum. It is lazy and arguably dishonest. We should be successful if the judge does his job. We have been assigned Justice Renwick. He is not a particularly good judge for us and is known to try to find ways to side with the Crown. [7]

[15] The Defendant primarily complains of three comments made by the court on 12 October 2022, during a case management hearing. On that date, the court made several directions of the prosecutor respecting disclosure. During the proceedings, the court requested that the Defendant not make up complaints about non-existent disclosure.

[16] As well, the Defendant complained that when the revised trial dates were set (on 01 April 2022), the Court inappropriately cut off the Defendant from expressing different scenarios to determine how much time would be required to try this case. The Defendant submits that he was prevented from suggesting that this trial could be completed in as little as 15 minutes, or it could take from eight to 10 days, depending on concessions between the parties. The court accepts that it did cut short the Defendant’s submissions, without hearing about all of the various scenarios, after hearing that the trial could take between 15 minutes and 10 days to complete.

[17] Also, during argument, the Defendant suggested that there were “hundreds” of examples of the court having sided with the prosecutor during the various case management hearings and pre-trial motions.

There is No Actual Bias or any Reasonable Apprehension of Bias

[18] The Defendant’s arguments are predicated upon his interpretations of the court’s comments, directions, and decision-making. While these are likely genuine, it is problematic to rely upon them to establish bias, actual or perceived. An unscrupulous litigant could easily manufacture suggestions of bias if cogent proof were not required.

[19] It is also difficult, especially in this case, to rely upon the Defendant’s feelings as a barometer of bias. I note that the Defendant is prone to exaggeration;

i. The Defendant has indicated that he wants to call “hundreds” of witnesses in his defence (28 March 2022); at other times, he has said that he will call five witnesses; on another occasion he suggested calling three students and four teachers to testify; in argument he indicated that 18 expert witnesses could be called; ii. The Defendant has said that there are “hundreds” of mistakes in the transcripts of the proceedings to date (15 November 2022); iii. The Defendant has claimed that the court has ruled in favour of the prosecution over 100 times (02 December 2022); and iv. The Defendant interprets the court’s cautions not to make things up as accusations of lying.

[20] The reasonable observer would also take note that on 12 October 2022 the court was equally critical of the prosecutor in terms of “speaking in generalities.” Also, the Defendant benefitted from the several disclosure rulings made that day. In fact, on another occasion (02 December 2022), the Defendant submitted that he had felt heard on 12 October 2022.

[21] The Defendant has benefitted from several disclosure rulings (12 October 2022), two procedural rulings (02 November 2022 ruling that emails are not records, 02 December 2022 ruling that s. 278.92 Application may be brought mid-trial), and at least one instance where the court did not call on the prosecutor to respond before ruling in his favour (21 November 2022 ruling permitting Bruce Thompson to testify on the s. 11(b) Application). When the trial was set (01 April 2022), the court also agreed in principle with the Defendant’s request to adjourn the trial following the hearing of evidence to permit extra time to prepare final arguments, without hearing from the prosecutor.

[22] The court has always been mindful of the Defendant’s interests, has sought clarification, and even suggested Applications such as the one under consideration.

[23] The reasonable observer would also be mindful that this matter has taken a significant amount of limited judicial resources in a busy jurisdiction, well in excess of the initial time estimate of five days. In fact, six days have been arranged for this trial, [8] in addition to the two full days already spent on pre-trial motions (02 and 25 November 2022) and case management appearances totalling one full day. Perhaps the time already spent and remaining compensates for the complaint respecting the failure to hear of the four possible trial scenarios: practically, the Defendant’s time estimates have been followed.

[24] It should not be lost on any reasonable observer that the court has not heard any evidence on the trial proper, there have been no determinations of credibility in any of the prior decisions, and there have been no actual expressions of bias made by the court.

[25] This may be contrasted with the Defendant’s conduct throughout the proceedings:

i. The Defendant has repeatedly directed invective or inflammatory remarks at both the prosecutor and the court (“lying,” “mis-management,” “incompetent”), despite repeated cautions and requests to cease; ii. The Defendant has directed comments to the prosecutor rather than the court, despite repeated cautions and requests to cease; and iii. The Defendant has recycled arguments and prolonged submissions, despite repeated cautions and requests to remain focussed.

[26] There is also an aspect of this Application that is potentially spurious. On 25 November 2022, the Defendant indicated that he was abandoning this application. In fact, at the end of that hearing, the Defendant thanked the court for its patience. Nonetheless, following the dismissal of the 11(b) claim, the Defendant re-initiated this Application.

Conclusion

[27] At its essence, the court’s comments and directions have taken place in a pre-trial forum, in the context of imperfected disclosure requests and case management appearances. The trial is not completed, nor has the evidentiary phase even begun. It is possibly premature to make a finding respecting bias or an apprehension of bias.

[28] The court has attempted to resolve procedural disputes between the self-represented Defendant and the prosecutor prior to the formal commencement of the Defendant’s trial. The proceedings have been civil for the most part, but they are contentious. The Defendant has benefitted from some of the court’s decisions and takes issue with others. Appellate courts are well placed to determine the ultimate value of procedural and legal rulings made by a trial judge.

[29] It is likely that the Defendant’s former counsel did a disservice to the Defendant in suggesting that this court is “known to try to find ways to side with the Crown.” This unwarranted comment may have irreparably tainted the Defendant’s perception of the impartiality of the court well before the start of the pre-trial proceedings.

[30] On at least two occasions, I have publicly apologized to the Defendant (03 November 2022 and 02 December 2022) to demonstrate understanding while attempting to balance the exigencies of trial management in an environment of diminishing resources. It is obvious that I am imperfect. However, I have and will continue to manage this case in an unbiased, even-handed manner respecting all parties, witnesses and staff.

[31] There is no merit to this Application. It is dismissed without prejudice to be renewed if circumstances warrant reconsideration.

Released: 05 December 2022 Justice G. Paul Renwick

Footnotes

[1] R. v. R.D.S., , [1997] 3 S.C.R. 484 at para. 31. [2] R.D.S., supra, at para. 31. [3] R. v. Hamilton, 2011 ONCA 399 at para. 30 and 47. [4] R.D.S. supra, at paras. 113 and 117. [5] R.D.S. supra, at para. 116. [6] This was conceded by the Defendant during oral submissions. [7] This email was reproduced by the Defendant in his Application materials. I note that the next seven lines of the email have been redacted. [8] Initially, five days were set for this trial, given that the initial trial time estimate was for five days. In the past month or so, the prosecutor’s schedule permitted an additional day to be set to include: 02, 05, 06, 07, 08, and 09 December 2022.