Ontario Court of Justice

Date: November 15, 2024

Between:

HIS MAJESTY THE KING (ONTARIO MINISTRY OF AGRICULTURE, FOOD & RURAL AFFAIRS)

— AND —

CHRISTOPHER ROCKE

Before Justice of the Peace: L. Crawford

Heard on: November 6, 2024

Reasons for Judgment released on: November 15, 2024

Counsel: Demetrius Kappos, counsel for the prosecution Christopher Rocke on his own behalf

JUSTICE OF THE PEACE CRAWFORD:

Background

[1] The defendant Christopher Rocke is facing 5 charges under the Bees Act, R.S.O. 1990, c. B.6 of Ontario;

• 2 counts of placing or leaving hives containing bees within 30 metres of a property line from land occupied as a dwelling (Bees Act, R.S.O. 1990, c. B.6, section 19(1))
• 2 counts as a beekeeper failing to obtain a certificate of registration (Bees Act, R.S.O. 1990, c. B.6, section 21(1)) – and –
• Fail to comply with the order of an inspector – section 24 Bees Act, R.S.O. 1990, c. B.6

[2] Mr. Rocke’s trial was scheduled to begin February 5, 2024, and the court was advised that Mr. Rocke had filed motions alleging breaches under section 7 and 8 of the Canadian Charter of Rights and Freedoms. The arraignment was done and the two days that were scheduled for trial, as well as one extra day, were spent on the Charter challenges. Ultimately, both motions were dismissed.

[3] Mr. Rocke’s trial is scheduled to continue at the end of November. In advance of that, he brought a motion that I be recused. He is alleging a reasonable apprehension of bias.

The test for Bias

[4] Both the prosecutor and Mr. Rocke referred to R. v. S.(R.D.) ((1997), 118 C.C.C. (3d) 353 (S.C.C.)), the case that set out the test for reasonable apprehension of bias. The test is an apprehension that is reasonable, one that would be held by reasonable and right-minded persons, viewing the matter realistically and practically, and having thought the matter through. Actual bias need not be established, because it would be impossible to prove what is in the mind of the trier of fact.

Allegations of bias

Interaction with the Crown

[5] Mr. Rocke alleges that I am biased toward the Crown, due to an interaction at the outset of the trial. The defendant described the interaction as my “asking the Crown’s advice” and “deferring to the Prosecution”.

[6] The topic of that interaction was not one that involved a substantive issue about witnesses or evidence. Both the Prosecutor for the Ministry of Agriculture, Food and Rural Affairs Mr. Kappos and Mr. Rocke agree it was about a procedural matter.

[7] Mr. Kappos provided R v Pheasant, ([2000] OJ No. 4817 (OCJ)), a case that states even “worrisome” and “troublesome” remarks don’t necessary require mistrial, and having dealt with the accused before isn’t necessarily grounds for recusal. There must be some fact or statement in the proceeding that infers the justice has already arrived at a conclusion regarding guilt or innocence, or a clear indication that a justice has preliminarily pre-judged the matter.

[8] Mr. Rocke has questioned my authority to have an exchange with the prosecutor in the manner that I did. However, the Ontario Court of Appeal judgment in R v Levkovic (2010 ONCA 830) confirmed the rule that a trial judge has authority to reserve judgment until the end of the case on any application made at the outset of trial proceedings – which includes Charter applications. A trial justice has the discretion to rule on the application at the outset or to wait to hear all the evidence on the trial.

[9] My practice is to take submissions on when to make the Charter ruling. The prosecutor gave submissions, and Mr. Rocke was given the same opportunity. Mr. Rocke had no opinion, and so I used my discretion in deciding to hear and give my decision on the Charter application first, not in tandem with the trial proper.

[10] The defendant cited the 1924 case of R v Sussex Justices (The King v. Sussex Justices, Ex parte McCarthy, [1924] 1 K.B. 256) that “justice should not only be done, but should manifestly and undoubtedly be seen to be done”. The exchange with the prosecutor was transparent, and on the record.

[11] Mr. Rocke has not provided any evidence to support the allegation that I pre-judged his matter, or was partial to the Crown’s view. The defendant alleges he is left with a belief that I have a “predisposition to believe the Crown fully”. This is just a belief, and not borne out in fact.

Self-represented defendants and managing court procedure

[12] The defendant alleges “inappropriate judicial behaviour” and “unwarranted duress” because I asked him numerous times to move along in his questioning. In his submissions he called that intervention harassment. As I indicated to Mr. Rocke during his motion, there are numerous cases that confirm a justice’s right to control proceedings in their courtroom.

[13] The prosecutor cited R v Loveman (1992 ONCA 2830, [1992] OJ No. 346 (CA)) “A trial judge must control the trial proceedings so as to ensure fairness to all concerned and preserve the integrity of the trial process. The specific situations in which the trial judge must exercise that power are infinitely variable and his or her order must be tailored to the particular circumstances.”

[14] Mr. Rocke cited R v Gager (2020 ONCA 274), which makes the same point at paragraph 154: “That the trial judge reminded counsel to stay on track and raised evidentiary and other legal and procedural issues was exactly what he was required to do as the trial judge. He had authority and discretion to manage the proceedings. He did so justly.”

[15] There is other case law to back up the rights of a presiding justice: Waterloo (City) v Singh (2006 3663) states a justice of the peace has authority to control the court’s own process. R v Felderhof (2003 37346 (ON CA)) stated the justice should not sit passively while counsel call the case any way they like. In R. v. Samaniego, (2022 SCC 9) the Supreme Court of Canada confirms trial management power can encompass restricting cross-examination that is “unduly repetitive, rambling, argumentative, misleading or irrelevant” citing R. v. Ivall, 2018 ONCA 1026; R. v. Snow (2004), 73 O.R. (3d) 40 (C.A.).

[16] Mr. Rocke refers to my “mindset” that the courts are very busy. It is not a mindset; it is a fact. I can take judicial notice that it takes months to get a trial in Hamilton Provincial Offences Court.

[17] My duty as a judicial official is not only to make sure that the defendant gets a fair trial, but to ensure the trial runs efficiently. R. v. Samaniego spoke to the importance of efficiency in trial management, particularly in this post- Jordan era. (R. v Jordan (2016 SCC 27)). When one trial takes much longer than required, other defendants’ right to a timely trial may be jeopardized.

[18] Mr. Rocke stated in his submissions that the reason I took measures to control his trial is because I am “scared (you) will get in trouble”. This is not a fact. This is his opinion, and not based on evidence. In any case, Mr. Rocke’s comments have no bearing on his allegations of bias.

Reasonable person v Reasonable bureaucrat

[19] Mr. Rocke appears to have misapprehended the reasonable person test. The test for bias, as outlined above, is whether a reasonable person considering all of the information, assessing the proceedings at trial as a whole, would believe there to be an apprehension of bias.

[20] He seems to have conflated me with that reasonable person in the test, alleging I am not a reasonable person. He refers to my former profession as a journalist at the Canadian Broadcasting Corporation which is a federal agency. He states that as an Ontario provincial justice of the peace, I am now paid by government sources. Mr. Rocke reasons that I must have an institutionalized bias towards government policies, practices and mandates.

[21] There are flaws in that argument. As a federal agency, the CBC has no bearing or relation to the Bees Act of Ontario.

[22] Labelling every employee at CBC as a bureaucrat is not a correct assessment. Mr. Rocke is entitled to his opinion, but this opinion has no bearing on the issue at hand.

[23] Mr. Rocke’s submits that a justice of the peace paid by provincial government sources is not fit to try his case due to bias towards government policies. Following that logic, there would be no judge or justice of the peace in the province that would be fit to try his matter.

[24] Whether or not Mr. Rocke personally considers me a reasonable person is separate and apart from the decision I am considering; again, the test in R. v. S.(R.D.) 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."

Inexperience

[25] Mr. Rocke states that I am inexperienced, based on the facts in his affidavit. It is unclear the threshold at which Mr. Rocke would consider a justice of the peace experienced, but he has brought no evidence or law that would indicate that real or perceived inexperience is grounds for a justice to recuse oneself.

Other allegations

[26] Mr. Rocke lists a series of grievances related to specifics on my decision on his Charter motion, a decision on a joinder motion made by another justice of the peace, and comments about judicial tardiness. None of these have any bearing on an allegation of apprehension of bias.

Timeliness of application

[27] The prosecutor raised the issue of timeliness of the application, citing R v McGibbon, (1988 ONCA 149, [1988] OJ No. 1936 (CA)) that states “bias must be asserted in a timely way”…. an allegation of bias must be made at the "earliest practical opportunity."

[28] Mr. Rocke did not raise any concern about bias after his motion concluded in February. The recusal motion was not filed with the court until October 15th, some eight months after what he alleges was the offending behaviour by me. This is neither timely, nor at the earliest practical opportunity.

Conclusion

[29] In his submissions, Mr. Rocke stated his view that I am not impartial towards him specifically, but rather that he believes I have contempt for self-represented individuals in general and am partial to the prosecutor.

[30] The defendant is alleging my bias based on my exchange with the prosecutor as the trial began about whether the constitutional motion would be heard concurrently with the trial, or before. He also alleges bias due to the way I managed the trial, as well as what he perceives to be my inexperience and demeanor as I heard the motion.

[31] R. v. Musselman (2004 ON SC 34073, [2004] O.J. No. 4226 (Ont. S.C.)) states that the apprehension of bias itself, must be reasonable and not far-fetched or the product of an overly sensitive mind.

[32] R v S.(R.D.) states “Before concluding that there exists a reasonable apprehension of bias in the conduct of a judge, the reasonable person would require some clear evidence that the judge in question had improperly used his or her perspective in the decision-making process”.

[33] The apprehension of bias that Mr. Rocke alleges is not reasonable in itself. There is no evidence from which a reasonable person could deduce that I do not have an open mind on Mr. Rocke’s matter.

[34] Mr. Rocke has not provided facts that would give rise to a reasonable apprehension of bias. The motion of bias is dismissed.