R. v. Catcheway, [2000] 1 S.C.R. 838

Arthur David Gabriel, Percy Norbert Gabriel,

Vernon Conrad Gabriel, Garry Vernon Catcheway,

Wilfred Joseph Catcheway, Judy Ann Catcheway,

Warren Kenneth Catcheway, Vernon Cory Gabriel,

Robert Joseph Houle and Gordon Arnold Catcheway Appellants

v.

Her Majesty The Queen Respondent

and between

Keith P. Catcheway Appellant

v.

Her Majesty The Queen Respondent

Indexed as: R. v. Catcheway

Neutral citation: 2000 SCC 33.

File No.: 27161.

2000: June 15.

Present: McLachlin C.J. and L’Heureux‑Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ.

on appeal from the court of appeal for manitoba

Criminal law -- Trial -- Bias -- Members of Indian band convicted of mischief for blockade of provincial highway -- Trial judge’s prior professional dealings with certain band members or groups while still a practising lawyer raising reasonable apprehension of bias -- Convictions set aside and new trial ordered before different judge.

APPEAL from a judgment of the Manitoba Court of Appeal (1999), 1999 CanLII 14051 (MB CA), 134 Man. R. (2d) 129, 193 W.A.C. 129, [1999] M.J. No. 42 (QL), dismissing the appellants’ appeal from their convictions for mischief relating to the blockade of a provincial highway. Appeal allowed, convictions set aside and a new trial ordered before a different judge.

Harvey J. Slobodzian and Paul E. Kammerloch, for the appellants Gabriel et al.

No one appeared for the appellant Keith P. Catcheway.

Gregg Lawlor, for the respondent.

The judgment of the Court was delivered orally by

1 Iacobucci J. — This appeal arises out of a dispute between two political factions on the Waterhen Indian Reserve, near Dauphin, Manitoba. After losing political control, the faction known as the “quorum” set up a blockade on the provincial highway leading into the reserve in order to keep out supporters of the other faction, led by the band’s Chief. They were charged with mischief and other crimes, which this appeal raises for review.

2 The appellants submit that the trial judge’s conduct prior to and during the trial gives rise to a reasonable apprehension of bias. They seek to support this allegation with a motion to file fresh evidence in the form of two affidavits deposed by appellant Arthur David Gabriel. The first affidavit explains their failure to introduce the evidence in the courts below, and the second sets out the evidence of bias. Essentially, it reveals that the trial judge’s law firm, in his prior practice as a lawyer, had represented certain groups within the reserve. In addition, the trial judge personally adjudicated an unjust dismissal hearing in favour of the wife of one of the appellants, represented one of the first people to be charged for participating in the barricade incident at a contested bail hearing (not an appellant before this Court), and was consulted by the appellants regarding the charges against them. The appellants also submit that the trial judge’s conduct during the trial, in peremptorily dismissing the unrepresented appellant Wilfred Catcheway’s motion to recuse himself, also raise a reasonable apprehension of bias.

3 The appellants also argue that the Manitoba Court of Appeal erred in not granting the adjournment requested by them, while they were unrepresented, to seek legal advice concerning the possibility of bringing a motion to admit fresh evidence. This request was denied without reasons. The appellants suggest that it is not clear why this motion was denied, assuming it may be owing to the fact that, in the opinion of the Court of Appeal, the evidence to support the conviction of each of the appellants was overwhelming.

4 The Crown essentially concedes that there was a reasonable apprehension of bias. Although it submits that the Court of Appeal did not err in denying the motion to adjourn to seek legal advice, it notes that the material submitted by the appellants “clearly demonstrates that the trial judge had professional dealings with some of the appellants while he was still a practising lawyer”. It also notes that, “[o]f great concern is the fact that the trial judge, while still a practising lawyer, acted for a co-accused (who was not tried before him) on a bail application, and apparently had access to the full police report respecting the accused who would eventually appear before him at trial”. The Crown also agrees with the appellants that the fresh evidence should be admitted.

5 Accordingly, we are all of the view that in the special circumstances of this case, the fresh evidence should be admitted. On that new evidence, we find that the trial judge’s prior involvement raised a reasonable apprehension of bias in accordance with the well-established jurisprudence on the issue. Therefore, we would allow the appeal, set aside the judgment of the Manitoba Court of Appeal and the convictions of the appellants, and return the matter to the trial court for a new trial before a different trial judge.

Judgment accordingly.

Solicitors for the appellants Gabriel et al.: Pullan Guld Kammerloch, Winnipeg.

Solicitor for the respondent: Manitoba Justice, Winnipeg.