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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 162.1, 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: 2024 07 07 COURT FILE No.: Brampton 3111 998 20 6980

BETWEEN:

HIS MAJESTY THE KING

— AND —

S.K.

Before Justice G.P. Renwick

Heard on 18 October, 07 November, 04 December 2023 and 22 January, 02 April, 17 April, and 27 June 2024 Reasons for Judgment released on 07 July 2024

Counsel: S. Burton............................................................................................... counsel 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 while 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] 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); ix. 02 December 2022 – Apprehension of Bias Application (full court day). That Application was dismissed in writing on 05 December 2022; x. 05 December 2022 – Disclosure Application (full day); xi. 16 January 2023 – brief appearance to set dates (matter adjourned); xii. 17 January 2023 – brief appearance to set dates; xiii. 06 June 2023 – brief appearance to discuss timing (1.0 hours); xiv. 11 October 2023 – brief appearance to discuss timing; and xv. 18 October, 07 November, 04 December 2023 and 22 January, 02 April, 17 April, and 27 June 2024 – evidence and argument on this Application (approximately 25 hours).

[4] This is the Defendant’s second motion alleging that the court is biased or there is a reasonable apprehension of bias. The following questions are at issue:

i. What is the test for bias or a reasonable apprehension of bias; and ii. Has the test been met in this case.

Governing Jurisprudence

[5] 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.

[6] 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 (or has consciously or unconsciously failed) to decide the matter impartially. [1]

[7] 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, 1976 SCC 2, [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]

[8] 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), 2003 ONCA 37346, 68 O.R. (3d) 481 (C.A.), at para. 40. [3]

[9] 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.

[10] 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]

[11] Recently, our Court of Appeal has commented on the test:

Moreover, the impugned conduct or comments of the trial judge must be viewed in the context of the entire record to determine whether the alleged bias influenced the decision-making process or the overall appearance of the fairness of the proceedings: R. v. MacMillan, 2024 ONCA 115, at para. 78; Jaser, at para. 313. [6]

[12] In paragraph 230 of Chippewas of Mnjikaning First Nation v. Ontario, 2010 ONCA 47, our Court of Appeal confirmed that the trial record has to be assessed in its totality and the interventions complained of must be evaluated cumulatively, rather than as isolated occurrences.

[13] A defendant’s perceptions are not irrelevant on this type of Application: “Although the inquiry is an objective one, it does not follow that the perspective of an accused person ought to be factored out of the equation.” [7]

Discussion

General Observations

[14] As I have said before, it is unfortunate that I have to adjudicate my own conduct during the proceedings. 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.

[15] I do not believe that I harbour any bias as between the Defendant and the prosecution. I believe that I can complete this matter in a fair and neutral manner.

The Basis for Complaints of Bias

[16] The Application for the court to disqualify itself appears to have its genesis in an email sent from the Defendant’s former counsel (Mr. Nader Hasan) to the Defendant prior to the first hearing of his s. 11(b) Application. [8] In an email dated 07 February 2022 (exhibit #10 on the Application), Mr. Hasan alleged the following:

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. [9] [emphasis added]

[17] During the Application, the Defendant alleged 47 grounds. Early submissions included that the court is a “crook,” “con-artist,” and “bull-shit master.” The Defendant called three witnesses during the Application, in addition to his testimony: Ms. Seema Gill, Mr. Udesh Dhawan, and Mr. Rakesh Tiwari. The prosecutor did not call any evidence and did not cross-examine the Defendant.

[18] In defence, the Respondent relied upon its brief written submissions.

The Evidence Established that there is A Reasonable Apprehension of Bias

[19] I found the Defendant’s witnesses to be genuine during their testimony. Ms. Gill complained of the court’s facial expressions to establish her perception of bias against the Defendant. I am ill-equipped to monitor these or to rebut this evidence. If I was smirking or making any expressions that showed a closed mind, I am unaware of them, and I apologize. Facial expressions can legitimately give rise to a reasonable apprehension of bias.

[20] Most compelling, however, was the Defendant’s testimony.

[21] Mr. K. is a thoughtful and articulate witness. While sometimes prone to exaggeration, this witness was also candid and transparent respecting his own perceptions and feelings. Mr. K. alleged that I have shown bias against him on several occasions. He has marshalled transcripts and comments of the court to establish some of his claims. He has been quick to admit his faults, biases, and temperament. I cannot easily dismiss his evidence as motivated by ill-will or malice. He genuinely believes that the court has preferred the word of the prosecutor over his words in some instances. These are not unwarranted observations.

[22] After a careful consideration of all of the arguments made by the Defendant and the prosecution, I am granting the Application on the basis of the cumulative effect of the following:

i. Mr. Nader Hassan, the Defendant’s former counsel, told the Defendant that I am known for siding with the prosecution and I would be biased against him. [10] This remark is not insignificant and can alone create a reasonable apprehension of bias given that it comes from senior, respected counsel; ii. I failed to explain to the self-represented Defendant that by adjourning his initial trial date, it may appear that he was accepting ALL delay from that date until the trial took place. This failure and others may well have added to the Defendant’s apprehension of bias; iii. On at least one occasion, I said that I accept the crown attorney at her word. I have explained subsequently that I meant that all lawyers are trusted by the court when they speak, given their duty to the court and their professional obligations, unless the contrary is shown. I now understand that without further explanation, this may have created a reasonable apprehension of bias in the mind of the self-represented Defendant; iv. The Defendant subjectively holds the belief that I have shown a bias against him; he believes that if I am his trial judge he will not get a fair trial. I find that these beliefs are not manufactured, they are genuine and reasonable; v. The Defendant has called witnesses to some of the proceedings who have testified that they perceive that I have shown bias as against the Defendant; vi. The Defendant has proven that I have been imperfect in how I have handled things over the past 28 months. I have agreed with the Defendant in some instances; vii. The Defendant has complained about my conduct to the Ontario Judicial Council; that complaint remains outstanding. While that should not in and of itself create a perception that the court would be biased against the Defendant, it increases the likelihood that a reasonably informed member of the public fully apprised of the circumstances would conclude that the court cannot maintain judicial neutrality in this matter; viii. The Defendant has demonstrated that the pre-trial judge made several helpful suggestions which have helped to move this matter along efficiently; this judicial conduct is markedly different than my own. This matter has gone on for approximately four years and I have not done enough to focus the parties and conclude the matter sooner; ix. There may well be a perception that I have lost judicial neutrality as between the parties. During the Defendant’s hunger-strike, I attended outside the court to observe the Defendant and on more than one occasion I have asked the prosecutor to determine if this prosecution should continue; x. I have repeatedly stated on the record that the Defendant did not faint or have a medical episode on 05 December 2022; [11] this alone detracts significantly from my judicial neutrality (it was a finding that I was not qualified nor required to make); and xi. Bias may be conscious or unconscious; unconscious bias is not likely to be perceived by the person holding the belief.

[23] I also note that the Defendant has not been arraigned before me; although it is usually the case that once a judge hears a s. 11(b) Charter Application that judge becomes the trial judge, that is not always the case. I find that there is no good reason why the matter should continue before me.

[24] I would also note that it has become obvious that the Defendant is unsettled by my presence as the trial judge. I have the sense that my continued role in these proceedings may be detrimental to the timely progression of the matter.

[25] The Defendant cannot prove actual bias. There is no evidence to establish this aspect of the Application. However, I am satisfied that the high burden to demonstrate a reasonable apprehension of bias has been proven on a balance of probabilities.

[26] If I am wrong in that assessment, I am exercising my residual discretion to recuse myself from this case so that I will not harm either party’s right to a fair trial in this matter or the appearance of justice.

Conclusion

[27] Judicial neutrality cannot flow from a sprinkler set intermittently. Justice requires it to nourish every inch of the trial landscape thoroughly and consistently.

[28] Sitting as a summary conviction appeal court, Justice Woollcombe noted:

…it is worth remembering that trial judges presiding over cases in which an accused person is unrepresented face a very challenging task. They have an overarching duty to protect the fairness of the proceeding and have an onus to provide assistance to the accused. They must balance their obligation to assist the accused in advancing full answer and defence with their judicial role as neutral and objective adjudicator. A trial judge’s assistance to a self-represented accused must be reasonable, a standard that accommodates a range of options to ensure that the accused receives the necessary assistance: R. v. J.D., 2022 SCC 15 at para. 34; R. v. Richards, 2017 ONCA 424, at paras. 109-113; R. v. Walker, 2019 ONCA 765 at paras. 60-61. [12]

[29] This court has tried to maintain judicial neutrality while protecting the Defendant’s interests. This has become increasingly difficult due to the lengthy proceedings, the frequently provocative nature of the Defendant’s presentation, and the crown’s approach.

[30] It is likely that his former lawyer, Mr. Nader Hasan, 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. Unfortunately, by its own conduct, the court has done little to reverse this early apprehension of bias.

[31] For these reasons, the Application succeeds. I am disqualifying myself from continuing to hear this matter.

Released: 07 July 2024 Justice G. Paul Renwick

Footnotes:

[1] R. v. R.D.S., 1997 SCC 324, [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] R. v. Colley, 2024 ONCA 524 at para. 72. [7] Colley, supra, at para. 84. [8] This was conceded by the Defendant during oral submissions. [9] This email was reproduced by the Defendant in his Application materials. I note that the next seven lines of the email have been redacted. [10] It remains unknown to the court why counsel believes this. Prior to the s. 11(b) Application, I had never met nor dealt with Mr. Hasan, ever. [11] I have repeatedly accused the Defendant of throwing his papers and himself to the ground. [12] R. v. Geoffrey Mathews, 2023 ONSC 156 at para. 41.