ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 09-6668
DATE: 2012/09/17

BETWEEN:

HER MAJESTY THE QUEEN Respondent – and – BRIAN MAILMAN Applicant

Kevin Phillips, for the Crown/Respondent
Jason Gilbert, for the Accused/Applicant

HEARD: August 31, 2012

REASONS ON MOTION FOR MISTRIAL

aitken J.

Nature of the Proceedings

[1] The Applicant, Brian Mailman, brings a motion for a mistrial on the grounds that there is a reasonable apprehension of bias due to findings made by myself, the trial judge, during the course of a bail hearing heard mid-trial. For the reasons that follow, this motion is denied.

[2] The Applicant stands charged with two counts of sexual interference contrary to s. 151 of the Criminal Code , R.S.C. 1985, c. C-46 (“ Code ”) and two counts of sexual assault, contrary to s. 271 of the Code . The counts relate to alleged interactions between the Applicant and the two sons of a woman with whom the Applicant was cohabiting at a time when the sons were minors. The Applicant elected to be tried by a judge sitting without a jury.

[3] The trial commenced on May 29, 2012. At the time, the Applicant was unrepresented, though counsel, Mr. Gilbert, had been appointed to cross-examine the two complainants. The two complainants testified on that date and were cross-examined by Mr. Gilbert. At the close of the day, Mr. Gilbert advised the Court that, although he had received a full package of disclosure from the Crown several weeks earlier, the Applicant had not personally received such disclosure. The Applicant advised that he wanted counsel but had been denied legal aid coverage in the past and did not have the resources to hire counsel. He also stated strongly that he did not want a lengthy adjournment of his trial, as he needed to put the matter behind him, and his surety no longer wanted to act as his surety.

[4] After considering a variety of options, the following course of action was agreed to by all. The following day, the Applicant would once again apply for legal aid. He had recently lost his employment and, consequently, may then have qualified for coverage despite not having done so in the past. Crown counsel was to contact Legal Aid to advise that the Applicant was in jeopardy of incarceration if convicted. I undertook to contact the Legal Aid Area Director to ask her to expedite any application submitted on the Applicant’s behalf. Mr. Gilbert undertook to represent the Applicant if legal aid coverage was available. It was agreed that the trial would resume in two days.

[5] When the trial resumed, the Applicant advised that he had not yet applied for legal aid, but wished to do so. I told him that the Legal Aid Area Director had been ready to expedite his application and was waiting to hear from him. The trial was adjourned to July 4, 2012. By that time, the Applicant had obtained legal aid and was represented by Mr. Gilbert.

[6] On July 4, 2012, witnesses were called during the morning. The Court was advised that the Crown had recently become aware of some emails received by the complainants’ mother from the Applicant. During the lunch break, Crown counsel disclosed these emails to Defence counsel. When Court resumed after lunch, I was advised by Mr. Gilbert that the Applicant had excused himself briefly and should return momentarily. The Applicant was paged many times. Mr. Gilbert, the investigating officer, and the Applicant’s surety tried to locate him. Mr. Gilbert tried to reach him on his cell phone – all to no avail. A bench warrant was issued for the Applicant’s arrest; however, I instructed the investigating officer to advise Court House security and other police officers that the Applicant might be mentally unstable, and to approach him in a sensitive fashion. I felt that this caution was necessary in that the Applicant’s surety, whom I released from his duties, raised some concerns that the Applicant might be suicidal.

[7] On July 10, 2012, the Applicant was brought back before me on the bench warrant. A bail hearing was scheduled before myself on July 17, 2012. On that date, Crown counsel provided a synopsis of the evidence. That summary was not challenged by Defence counsel. The Applicant testified on his own behalf. At the conclusion of evidence and argument, I provided oral reasons for detaining the Applicant in custody pending the completion of the trial.

Grounds Alleged for a Mistrial

[8] The Applicant argues that there is a reasonable apprehension of bias for the following reasons: (1) I made adverse findings as to the Applicant’s credibility prior to the completion of the trial, and (2) I made factual findings to the effect that the Applicant sent emails to the complainants’ mother contrary to his release conditions and, in so doing, put pressure on both her and her children.

Test for Bias

[9] A person alleging bias does not have to prove actual bias. All that the person has to prove is a reasonable apprehension of bias. The test was clearly stated by de Grandpré J. in his dissenting reasons in Committee for Justice and Liberty v. National Energy Board , 1976 2 (SCC) , [1978] 1 S.C.R. 369, 68 D.L.R. (3d) 716, at para. 40 :

[T]he apprehension of bias must be a reasonable one, held by reasonable and right-minded persons, applying themselves to the question and obtaining thereon the required information. ... [The] test is “what would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude.”

[10] The following principles regarding a determination of whether a reasonable apprehension of bias has been established are gleaned from R. v. S. (R.D.) , 1997 324 (SCC) , [1997] 3 S.C.R. 484, 151 D.L.R. (4 th ) 193, at paras. 110-115 :

a. The test has a two-fold objective element: the person considering the alleged bias must be reasonable, and the apprehension of bias itself must also be reasonable in the circumstances of the case.

b. The reasonable person must be an informed person, with knowledge of all the relevant circumstances, including “the traditions of integrity and impartiality that form a part of the background and apprised also of the fact that impartiality is one of the duties that judges swear to uphold”.

c. A real likelihood or probability of bias must be demonstrated; a mere suspicion is not enough.

d. The threshold for a finding of real or perceived bias is high.

e. The onus of demonstrating bias lies with the person who is alleging its existence.

Findings Relating to Credibility of the Applicant

[11] After stating that I was most concerned with the primary ground for detention, I went on to make the following comments in regard to that ground in the context of the evidence I had heard at the bail hearing:

In my view, it takes quite a high level of audacity to leave in the middle of one’s own criminal trial. I have been on the bench for 15 years now. It is the first time that has happened during any criminal trial that I have presided over. You know it does happen, but it is not a very common occurrence, and that says something. It says if somebody actually gets up and leaves, that person is prepared to take pretty serious measures to get out of the circumstances they are in.

You indicated you did that because when you were outside at lunch you heard a previous witness laughing and that was of concern to you. You also felt things were going in the wrong direction, perhaps due to the disclosure of the emails that had come to light that day. As well, you indicated that you were continuing to feel very upset about the fact that you have not seen your daughter in, I think, two and a half years.

Even looking at those reasons, to actually get up and leave your own trial just says to me that you do not have particularly good self-control at this point. Maybe you had that in the past, and you have been out on bail for a considerable period of time without incident, but currently, you are not acting in that fashion.

[12] I then went on to review the Applicant’s own evidence as to where he had been living in the period prior to and following July 4, 2012 and the difficulties he had experienced in his relationships with his former girlfriend and then his surety. The Applicant’s own evidence had been that he was now in a new relationship with a woman who lives in another community and he had used money that she had provided to enable him to leave Ottawa during the trial and stay in a hotel room in Kingston for approximately five days, before turning himself in to Kingston police. By his own evidence, he had not told his new girlfriend that he was going to Kingston because he was “on the run”. It was in this context that I went on to say:

... In regard to your relationship with her, you are not fully honest with her, as you borrowed, or received a gift of money from her so that you could go to Kingston.

All of these recent events suggest to me that you are not in good control right now, that I cannot have confidence that if I released you on bail pursuant to the recognizance that is proposed that I can count on you living up to the terms of that recognizance and being in attendance here when required to be. ...

This is not a situation where over the afternoon you left in a panic and then calmed down and returned very quickly. You were away until Monday. I do not know what happened between July 4 th and July 9 th , and why July 9 th was the magic date you turned yourself in, but I know that is a significant period of time.

If common sense or reasonableness did not come back to you for five days, it makes me very worried that it might not stay with you if you are back out on bail. That first ground is what I consider the most important ground and reason why I am not satisfied that you should be back out on bail.

[13] First, it is important to note that I did not make any adverse findings of credibility in regard to the Applicant at the time of the bail hearing. In fact, I accepted his explanation as to why he had left the court house in the middle of his trial, where he had been in the interim, where he had obtained funds to go to Kingston, what he had told his girlfriend in this regard, and when he had turned himself in. That evidence led me to doubt the level of self-control the Applicant was able to muster at this stage in his trial and led me to have concerns as to whether he would attend trial until its completion if he were not incarcerated. This conclusion was based on an acceptance – not rejection – of his evidence.

[14] Second, and in any event, to the extent that any aspect of my decision regarding bail could be seen as an adverse finding of credibility in regard to the Applicant, the law is clear that such findings do not call for a trial judge to recuse herself.

[15] In R. v. G.H. (2002), 165 O.A.C. 56 , 2002 49363 (C.A.), at para. 6 , the Court of Appeal rejected the argument of an accused that, since the trial judge found the accused to be an “incredible” witness during the voir dire dealing with the voluntariness of his statements, she should not have continued to preside over his trial. The Court stated:

Trial judges are constantly called upon to assess credibility in making rulings on pre-trial motions and voir dires during the trial. It is a necessary and accepted part of the judicial role and of the administration of judge that those conclusions will not impermissibly flow through to the trial proper. A trial judge’s assessment of the credibility of an accused during the trial will depend on what the accused says during his or her testimony, that is if the accused chooses to testify.

[16] A similar issue arose in R. v. Czerniak , 2010 ONSC 5067 , 259 C.C.C. (3d) 353. The trial judge made some negative comments to defence counsel when he sought an adjournment on the first day of trial. Following a voir dire on a s. 11(b) motion, the trial judge found that the accused’s evidence was exaggerated and that prejudice to the accused had not been proven. Defence counsel asked the trial judge repeatedly to recuse herself, and she refused. The accused was convicted. He appealed on the basis of a reasonable apprehension of bias on the part of the trial judge. In dismissing the appeal, G. Trotter J. referred to the above quote from R. v. G.H. and went on to state at para. 21:

Trial judges sometimes make adverse findings of credibility in relation to accused persons and Crown witnesses on pre-trial motions. By virtue of s. 11(c) of the Charter , an accused person is entitled to decide whether he or she wishes to testify (at any stage of the proceedings). An accused person is not entitled to a judicial substitution every time an adverse credibility finding is made. [Emphasis in original.]

Findings Relating to Emails

[17] During his submissions at the bail hearing, Crown counsel noted that on the Applicant’s recognizance of bail, there was a term that he had no contact with the mother of the complainants. He related how there had been multiple instances of communication by the Applicant with the complainants’ mother via email from February 14, 2012 to July 4, 2012 – the day the Applicant left court during the middle of the trial. Crown counsel described the nature of the emails as being to make the complainants’ mother feel guilty that the Applicant was being prosecuted, and to dissuade her from supporting the Crown’s case. Crown counsel read into the record the following excerpts from those emails:

I know I shouldn’t even be contacting you, so I won’t say much more, but I hope you and your family realize the magnitude of all of this.

This has to end. I’ve been punished enough. Let me go.

You have no idea what you have done to me and my family.

[18] Defence counsel did not object to this portion of the synopsis of the evidence on the bail hearing. He did not advise the Court that the existence or content of these emails was in issue in any respect. Defence counsel did not allege that Crown counsel was misleading the Court regarding the existence, authorship, or nature of these emails or about the fact that they had been disclosed to the Applicant immediately before he left the Court House on July 4, 2012. In short, he raised no issue about my hearing this evidence in the context of the bail hearing. I note this because Defence counsel did raise an objection in regard to other evidence tendered by Crown counsel and I sustained that objection.

[19] The Applicant chose to testify at the bail hearing. During the course of his examination-in-chief, the Applicant was asked what was going through his mind when he left the courtroom after lunch on July 4, 2012. The Applicant responded:

It’s – I mean, it’s been this – this situation for me is – it’s been going on for a long time. And I understand there have been fits and starts, as Mr. Phillips said, some of them my fault, some of them due to the court. And that day, I just – I haven’t seen my daughter in two and a half years. I haven’t – I just felt like everything was going backwards. I was out after lunch outside. [A witness], who had testified earlier, was over there on his cell phone talking very loudly, laughing, talking about things. I just – I just had a sense of just – it was a ridiculous thing to do, I understand.

But when I came back in and I knew the emails were coming – and I knew that was wrong. I knew emailing [the complainants’ mother] was wrong. But there was never any threat. I never intended to coerce her into anything. That’s not – I – I have a realistic view of this – you know – what’s going on. I just – you know – she is the mother of my daughter, and she – she did say it was no problem to contact her for my daughter and stuff. I know that was wrong, too. I’m not supposed to contact her in any way. But there have been emails that she has sent me. But it just, kind of, all came to a head, and the – the pressure just – I don’t know. I just walked, and I went to the washroom, and I just kept going.

And after I left, I realized how ridiculous it was, but I just – I panicked. It wasn’t because I felt I’m guilty all of a sudden and I have to run. I just felt everything was kind of going backwards again. You know? I just didn’t feel like anything was moving forward. And – and to hear people outside laughing, and – and it just seemed really – really overwhelming for me. You know?

[20] During his subsequent submissions on the bail hearing, Defence counsel specifically discussed the emails. He put on the record that there were several emails that went from the Applicant to the complainants’ mother and he acknowledged that these, strictly speaking, were a breach of his recognizance.

[21] It is in this context that in my reasons on the bail hearing, after I focused on the primary grounds for detention – namely, a concern that the Applicant may not attend court as required – I made the following reference to the secondary grounds and to the emails:

I also think the secondary ground is of some relevance here, and that is

“where the detention is necessary for the protection or safety of the public, including any victim of or witness to the offence, or any person under the age of 18 years, having regard to all the circumstances including any substantial likelihood that the accused will, if released from custody, commit a criminal offence or interfere with the administration of justice.”

What is of concern to me there is that there is now evidence before the Court that at some point when you were on bail in the past and had a strict order not to communicate with [the complainants’ mother] except for work purposes, there clearly were communications. I think it was reasonable to assume she was a potential witness. From some of the communications read out to me today, portions of them, they can be interpreted that you were exerting pressure on her not to do anything that might jeopardize your position in this trial. Clearly, in putting pressure on her, the implication is there that pressure was also being put indirectly on the complainants, especially from the statements made about ‘what your family has done’, and ‘how you’re really hurting me’. That is a form of pressure.

It is of concern to the Court that you decided to do that knowing there was a strict prohibition in a court order ... There are recognizance of bail saying ‘no contact’, and both counsel have told me there are emails indicating that there was some contact.

That clearly raises concerns for the Court, as well, because what it does is it puts the administration of justice under pressure. The Court has to do whatever is required to make sure that complainants and witnesses are not pressured and that people can have confidence that they can come forward and tell their side of the story – hopefully the truth – at trials in which they are involved without feeling pressured by other people who are implicated in those trials. If we do not have that in our criminal justice system, then we do not have very much.

It is mostly for the primary grounds but also somewhat on the secondary grounds that has led me to conclude that at this point you have not satisfied me you should be released from custody.

[22] The emails which Crown counsel, Defence counsel, and the Applicant all stated had been sent by the Applicant to the complainants’ mother contrary to the terms of the Applicant’s bail conditions, were clearly relevant to the secondary grounds under s. 515 of the Code and were worthy of mention when interim release was being denied . Evidence relating to the emails was heard solely for the purpose of deciding the bail application. Neither the evidence tendered at the bail hearing in regard to the emails, nor any comments I made about them in the context of my decision to deny bail, can play any role whatsoever at the trial proper. Nor can they play any role whatsoever at any subsequent trial, which would be before another judge, of any charges against the Applicant for a breach of his recognizance. It is a basic principle of criminal law that it is only the evidence adduced at the trial proper that can be relied on in determining whether the Crown has proven its case beyond a reasonable doubt. Judges are well aware of this principle and apply it in every criminal case.

[23] It should be noted that, under s. 523(2) (a) of the Code , the judge before whom an accused is being tried, at any time, may, on cause being shown, vacate any order previously made for the interim release or detention of the accused and make any other order, provided for in Part XVI for the detention or release of the accused until his trial is completed, that the judge considers to be warranted. In fact, in other provisions under Part XVI which state that any judge of the Superior Court may hear a bail application, the timeframe is limited to “any time before the trial of the charge”. (See ss. 520(1) and 521(1).) Consequently, there can be no suggestion that a judge hearing a trial should disqualify herself from hearing an application, during trial, regarding the release or the detention of the accused.

[24] Under s. 523(3), the provisions of sections 517 , 518 and 519 of the Code apply in respect of any proceedings under s. 523(2) . Section 518 refers to the evidence that can be led at bail hearings. This includes any evidence submitted regarding the need to ensure the safety or security of any victim of or witness to an offence (s. 518(1)(d.2)) and evidence considered credible or trustworthy in the circumstances of the case (s. 518(1)(e)). At the time of the bail hearing, when Crown and Defence counsel both acknowledged the existence and nature of the emails, and the Applicant during his examination-in-chief, admitted to having sent them to the complainants’ mother, even though he knew that he was not supposed to contact her in any way, it would be quite a perversion of the system of justice if the emails as disclosed by both counsel and the Applicant could not be taken into account so as to avoid any suggestion of bias on the part of the trial judge during the trial proper.

Disposition

[25] The Applicant’s motion for a mistrial on the basis of a reasonable apprehension of bias is dismissed.

Aitken J.

Released: September 17, 2012

ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN Respondent – and – BRIAN MAILMAN Applicant REASONS on motion for mistrial Aitken J.

Released: September 17, 2012