Ontario Court of Justice

Date: 2024 01 12 Court File No.: 22-81103826 Windsor, Ontario

BETWEEN:

HIS MAJESTY THE KING

— AND —

BILLY PERSAUD-HEARNS

Reasons on Recusal Application

Before Justice Shannon L. Pollock

Heard on December 21, 2023 Reasons for Judgment Released on January 12, 2024

Counsel: Shelby Odom on behalf of Andy Nguyen................................... Counsel for the Crown Christopher Tarach.................................................................... Counsel for the Defendant

Pollock J.:

Introduction

[1] The Applicant is before the court on an information containing six (6) charges alleging various offences in relation to a handgun with an allegation date of November 16, 2022.

[2] The Applicant seeks a ruling that I recuse myself. It is the position of the Applicant that they have met their burden in establishing that there is a reasonable apprehension of bias which precludes me from hearing this case. The Applicant does not allege an actual bias. It is their position that my review and authorization of a DNA warrant on another set of similar allegations establishes a reasonable apprehension of bias.

The Facts

[3] The Applicant was arrested on November 21, 2021. On June 16, 2022, Constable Sean Richardson, an officer with the Windsor Police Service, swore an Information to Obtain (“ITO”) and sought a warrant for the DNA of the Applicant. I was the authorizing Justice.

[4] The offences listed in that request for authorization were section 91(1) of the Criminal Code (possessing a firearm without a licence) and section 244.2(1)(b) of the Criminal Code (discharging a firearm).

[5] In the Information to Obtain, the affiant provided an overview which stated the following (verbatim):

“On Sunday, November 21, 2021 Windsor Police were dispatched the area of Elsmere and Erie St E for a report of a fight with weapons, with one of the involved males carrying a black handgun. The male suspect was described as a male black, 26 years of age, wearing a green Adidas track suit and holding a black hand gun.

Windsor officers attended the area and located a male matching the given description walking west on the north sidewalk on Erie St. Windsor officers placed the male later identified as Billy PERSAUD-HEARNS with a birth date of October 31, 1996. PERSAUD-HEARNS was placed under arrest for Possession of a firearm.

During the search of PERSAUD-HEARNS, no firearm was located on his person, although approximately 25 feet away a black hand gun was located in a potted shrub in the area that PERSAUD-HEARNS was observed walking away from.

The black hand gun was photographed in situ by Windsor Police Forensic Officer and then seized. While proving the black hand gun safe, a live round was located in the barrel as well as thirteen live rounds in the magazine.

Windsor Police obtained a statement from a witness advising they heard one gun shot from the area PERSAUD-HEARNS was arrested prior to police arrival. PERSAUD-HEARNS was also advised he would be charged with Discharge Firearm.

On March 7, 2022 the Centre of Forensic Sciences returned a Biology report to Windsor Police stating a swab was collected from the grip of the hand gun which had been sent for analysis. The report states that three DNA profiles were located on the grip, including that of a male. There were no returned DNA hits from any of the profiles located on the grip.

On March 25, 2022 the Centre of Forensic Sciences returned a chemistry report stating that Gun Shot Residue was located on the green Adidas Track suit that PERSAUD-HEARNS was wearing at the time of his arrest.”

[6] There was no allegation contained within the ITO that the Applicant has a criminal record.

[7] The Applicant was arrested on November 16, 2022 for the matter currently before this Court. This matter alleges various possession offences in relation to a handgun and a cartridge magazine as well as breach of a release order.

[8] The offences alleged from November 21, 2021 are very similar in nature to those alleged on this matter.

The Applicant’s Position

[9] It is the position of the Applicant that they have met their onus in establishing that there is a reasonable apprehension of bias. The Applicant submits that a significant factor for my consideration is the strikingly similar nature of the matters and the charges. The Applicant is clear that they seek a ruling that there is a reasonable apprehension of bias and do not allege an actual bias.

[10] The Applicant submits that I was provided with a selective screening of the facts in the ITO and that there was a tainted presentation of the facts. The Applicant advises that there will be a challenge to that warrant as it is their position that the Affiant did not discharge their duty to be full, frank and fair.

[11] The Applicant submits that this case is distinguishable from others in that it is the ex parte nature of the matter that creates an issue. It is their position that the one-sided information I received, that was unable to be challenged or defended, on these similar allegations creates a perception that justice is not being done and, as a result, there is a reasonable apprehension of bias on the facts of this case.

The Position of the Respondent

[12] The Respondent’s position is that judges are presumed impartial and are often asked to disabuse themselves of facts. The Respondent took the position that there is no issue with me remaining on this trial. They submit that I should not recuse myself.

The Law

[13] As stated by the Supreme Court of Canada: “A system of justice, if it is to have the respect and confidence of its society, must ensure that trials are fair and that they appear to be fair to the informed and reasonable observer.” The courts are to be held to the highest standards of impartiality.: R. v. R.D.S. , [1997] 3 S.C.R. 484 at paragraphs 91 and 93

[14] Impartiality means an absence of bias, actual or perceived.: R. v. R.D.S. , [1997] 3 S.C.R. 484 at paragraph 104

[15] The test in determining whether an apprehension of bias exists is what an informed person, viewing the matter realistically and practically, having thought the matter through, would conclude.: Committee for Justice and Liberty v. Canada (National Energy Board) , [1978] 1 S.C.R. 369 at page 13

[16] The apprehension of bias must be a reasonable one, held by reasonable and right-minded persons, applying themselves to the question and obtaining the required information.: Committee for Justice and Liberty v. Canada (National Energy Board) , [1978] 1 S.C.R. 369 at page 13

[17] The reasonable person is a reasonable, informed, practical and realistic person who considers the matter in some detail. The person is not a “very sensitive or scrupulous” person, but rather a right-minded person familiar with the circumstances of the case. The reasonable person’s knowledge and understanding of the judicial process and the nature of judging as well as of the community in which the alleged crime occurred must be considered.: R. v. R.D.S. , [1997] 3 S.C.R. 484 at paragraphs 36 and 37

[18] Judges regularly hear multiple matters involving the same defendants in criminal courts. It is not unusual for an experienced criminal judge to be familiar with the parties appearing before them. Courts have ruled numerous times that this factor alone is not enough to create a bias.

[19] In 1995, the Alberta Court of Appeal said: “It is inevitable that there will be occasions when an experienced trial judge will have had some prior judicial contact with an accused. We are confident that trial judges are capable of disabusing their minds of that fact in considering the guilt or innocence of the accused in relation to the specific charge before them. Unless real bias can be shown, such prior contact is not a factor in determining an appearance of bias.”: R. v. Bolt, 1995 ABCA 22 at paragraph 2

[20] There must be a real likelihood or probability of bias demonstrated. A mere suspicion is not enough. The threshold for a finding of real or perceived bias is high.: R. v. R.D.S. , [1997] 3 S.C.R. 484 at paragraphs 112 and 113

[21] Judges are presumed to carry out their oath of office.: R. v. R.D.S. , [1997] 3 S.C.R. 484 at paragraphs 117

[22] There is a strong presumption of judicial integrity and impartiality. “Judges (as they regularly do in voir dire proceedings, for example) are expected to disabuse themselves of any prejudicial evidence that they might otherwise have encountered.”: R. v. Valle-Quintero, 2021 ONCA 390 at paragraph 8

[23] As a general rule, the fact that a judge has heard prior applications involving the same parties does not lead to an apprehension of bias, even if the judge has ruled against the objecting party: R. v. Abdul-Aziz , 2023 ABCA 338 at paragraph 8

[24] This applies when a judge hears a bail application or bail review and then other aspects of the proceeding: R. v. Abdul-Aziz , 2023 ABCA 338 at paragraph 9; R. v. Valle-Quintero , 2021 ONCA 390 at paragraph 8

Analysis

[25] The Applicant made submissions on the intention to bring an Application challenging the validity of the authorization I granted. They intend to submit that the Affiant did not comply with his duty to be full, frank and fair in the ITO. At this point, this is simply an argument to be made. I have no evidence that the Affiant failed to comply with his duty. Further, there is no ruling on this issue. There is only a statement that an application will be brought and that a ruling will be sought.

[26] The Applicant submitted that this situation is unlike a situation in which a defendant has previously been before the same judge for trial on another matter or a situation where they have previously entered a guilty plea to other charges before the same judge. The Applicant pointed out that a trial matter is defended and there is an opportunity for a defendant to challenge the allegations and present evidence. The Applicant notes that, unlike the issue before me, on a guilty plea there is a voluntary component.

[27] Each case is fact specific. This is a unique situation as it involves a prior ex parte application in relation to a different but similar set of facts. The ex parte nature of the Application means that I heard one side of the story. The Applicant refers to this as a significant factor for my consideration and in my assessment. At the time that I reviewed the request for an authorization, it was an undefended allegation however it was also an unproven one.

[28] While it is unique that this matter involves an Application due to my review of an ex parte application, it is significant that it was not in relation to the matter currently before me. Courts have ruled repeatedly that simply having prior involvement as a judicial officer with the defendant (or another party) before the court is not enough on its own to demonstrate that there should be a recusal.

[29] There have been occasions when trial judges have made decisions regarding bail on the very matter before them for trial and a reasonable apprehension of bias was not declared. While, in those circumstances, there is an opportunity to hear from a defendant who can point out the weaknesses in a case and present a bail plan, the allegations are essentially undefended. Stating the obvious, a defendant is presumed innocent throughout the process including at the time an authorization is sought.

[30] I compare my review of the Information to Obtain the DNA warrant to the process that occurs on a consent for judicial interim release. In that context, a defendant comes before the court, presumed innocent of course, and a one-sided summary of the allegations is put before the Justice for consideration on whether the release should be ordered as requested. The allegations are “undefended” at that time and the court is only hearing a version of events or theory from the prosecution. There is no voluntary component to the hearing as there would be on a guilty plea and it is not defended as allegations would be at a trial. This process is a form of bail hearing. Courts have repeatedly ruled that there was no reasonable apprehension of bias in circumstances where a trial judge presides over issues regarding bail. That has been the result even when an Applicant’s criminal record has been before the court (see R. v. Valle-Quintero referenced above).

[31] I have come to the conclusion that the Applicant has not met their onus in demonstrating a reasonable apprehension of bias. I have had no prior involvement in the matter before me. I reviewed an ITO and authorized a DNA warrant on an entirely separate matter. While it did involve allegations of a similar nature, they were only allegations. My role was to determine whether I was satisfied that there were reasonable grounds to believe that an offence had been committed, that a bodily substance had been found, that the Applicant was a party to that offence and that an analysis of the Applicant’s DNA would provide evidence about whether the bodily substance was the Applicant’s. I authorized a warrant and that concluded my involvement. As the authorizing justice, I would not have even learned the results of that authorization. There were no findings made against the Applicant. I did not assess credibility. I reviewed a one-sided version of the allegations against an individual who was presumed innocent knowing that it was a process during which there is no opportunity to rebut or defend the information.

[32] I conclude that no reasonable apprehension of bias by reasonable, right-minded and informed persons could be determined. The Application is dismissed.

Released: January 12, 2024 Signed: Justice Shannon L. Pollock