COURT FILE NO.: CR11-17
DATE: 20120928
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: R. v. Michael Linkie
BEFORE: The Hon. Madam Justice P.C. Hennessy
COUNSEL:
John C. Benson, for the Crown
Michael Linkie, self-represented
HEARD: July 27, 2012
DECISION ON MOTION REQUESTING RECUSAL
[ 1 ] On July 27, 2012 in the Ontario Superior Court at North Bay, Ontario, Michael Linkie made a motion requesting that I recuse myself as trial judge in his criminal case on the basis of a reasonable apprehension of bias. Following submissions on the issue, I considered the matter and denied the motion, advising the parties that reasons for the decision would follow. These are those reasons.
Background
[ 2 ] Mr. Linkie is before the court on a three-count indictment dated February 14, 2011. The indictment relates to incidents arising between August 2007 and June 2010. He stands charged with failure to comply with a publication ban with respect to a previous sexual assault proceeding, and two separate counts of harassment under s. 264(2) (c) of the Criminal Code .
[ 3 ] On March 26, 2012, I heard Crown motions related to terms of disclosure to Mr. Linkie, variation of his conditions of release, and the appointment of counsel to cross examine one of the complainants. There was also considerable discussion with Mr. Linkie with respect to concerns and issues around the electronic disclosure provided to him by the Crown. On April 12, 2012, I heard Mr. Linkie’s motion pursuant to s.140 of the Courts of Justice Act , R.S.O. 1990, c .c-43 for a stay on the basis of his allegation that the Crown’s motions constituted vexatious proceedings , as well as an application by Mr. Linkie to vary the terms of his bail . My decision on the stay motion was released prior to the third appearance on this matter, which was on July 27, 2012. Throughout the first two dates, Mr. Linkie made various references to his belief that I was biased against him, and on the July date he formally brought an application for recusal.
Grounds for the Motion
[ 4 ] Mr. Linkie raised four grounds for his motion that I recuse myself on the basis of bias:
My “continued behaviour” towards him in the courtroom, including his perception that I left the courtroom in anger on one occasion;
My failure to release a written version of an endorsement I made in court in a timely fashion;
My finding that s. 140 of the Courts of Justice Act does not apply to criminal proceedings.
The fact that I spoke to another judge regarding the presence of a Justice of the Peace in the courtroom on April 12, 2012.
Test for Reasonable Apprehension of Bias
[ 5 ] In the recent case of Lloyd v Bush , 2012 ONCA 349 , 292 O.A.C. 251 , the Ontario Court of Appeal confirmed at para. 24 that the well-settled test for establishing a reasonable apprehension of bias was set out in de Grandpré J.’s dissenting judgment in Committee for Justice and Liberty v. Canada (National Energy Board) , 1976 2 (SCC) , [1978] 1 S.C.R. 369 at pp. 394-95 :
The proper test to be applied in a matter of this type was correctly expressed by the Court of Appeal. As already seen by the quotation above, the 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. In the words of the Court of Appeal, that test 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."
[ 6 ] L'Heureux-Dubé and McLachlin JJ., concurring in R. v. S. (R.D.) , 1997 324 (SCC) , [1997] 3 S.C.R. 484 (“R.D.S”) , noted that the reasonable person “is not a ‘very sensitive or scrupulous’ person, but rather a right-minded person familiar with the circumstances of the case.” He or she must know and understand the judicial process and the nature of judging. Moreover, the reasonable person would expect judges to undertake an open-minded, carefully considered and dispassionately deliberate investigation of the complicated reality of each case before them (at paras 36-37, 40).
[ 7 ] Where an allegation of bias is made against a judge, there is a strong starting presumption of impartiality, which can only be displaced by cogent evidence that would cause a reasonable person informed of the contextual issues to believe that the judge would not approach the case with an open mind: Kelly v. Palazzo 2008 ONCA 82 () , [2008] 89 O.R. (3d) 111 at para. 20 .
[ 8 ] Finally, a finding of bias requires a contextual analysis of the entire circumstances, rather than seeing words and actions in isolation. R.D.S . at p. 398:
[A]legations of perceived judicial bias will generally not succeed unless the impugned conduct, taken in context, truly demonstrates a sound basis for perceiving that a particular determination has been made on the basis of prejudice or generalizations. One overriding principle that arises from these cases is that the impugned comments or other conduct must not be looked at in isolation. Rather it must be considered in the context of the circumstances, and in light of the whole proceeding.
Analysis
[ 9 ] Given the comments in R.D.S., before assessing the reasonableness of Mr. Linkie’s apprehension of bias, I will briefly provide some context with respect to the proceedings to date.
[ 10 ] It would be fair to say that this matter is not proceeding smoothly or efficiently and that it requires me to intervene from time to time to direct both Mr. Linkie and Crown counsel in an attempt to ensure that the proceedings are effective, efficient and fair to both sides. In this respect I am mindful of the statements made by the Ontario Court of Appeal in R. v. Snow 2004 34547 (ON CA) , [2004] 73 O.R. (3d) 40 at para. 24 :
[A] trial judge is certainly entitled to control the proceedings and to intervene when counsel fail to follow the rules or abide by rulings. A trial judge is not a mere observer who must sit by passively allowing counsel to conduct the proceedings in any manner they choose. It is well recognized that a trial judge is entitled to manage the trial and control the procedure to ensure that the trial is effective, efficient and fair to both sides: see Regina v. Felderhof (2003), 2003 37346 (ON CA) , 180 C.C.C. (3d) 498 (Ont. C.A.) at paras. 36-47 , 53; Regina v. Valley (1986), 1986 4609 (ON CA) , 26 C.C.C. (3d) 207 (Ont. C.A.) at 230-232 ; Regina v. G.(A.) (1998), 1998 7189 (ON CA) , 130 C.C.C. (3d) 30 (Ont. C.A.) at paras. 41-54 . We agree with the submission of the Crown that when viewed in the context of the proceedings as a whole, the trial judge did not cross "the difficult line between unnecessary, discourteous or erroneous interventions, and interventions that destroy the appearance of fairness": see Regina v. Lyttle (2004), 2004 SCC 5 () , 180 C.C.C. (3d) 476 (S.C.C.) at paras. 44-52 .
[ 11 ] An impartial observer would note that these proceedings have made a very slow start: I was assigned to the matter in March of 2012, and originally scheduled to hear pre-trial motions and to set the trial date. As of now, in September of 2012, we have yet to even reach the Defendant’s pre-trial motions.
[ 12 ] Self-represented people typically face a number of challenges in judicial proceedings, and Mr. Linkie is no exception. While it is clear that he has acquired a degree of familiarity with the trial process through his various court experiences, his substantive legal knowledge is understandably limited and he is not fully aware of all of the procedural and evidentiary rules that govern criminal proceedings in the Ontario Superior Court of Justice. It has not been unusual, for example, for Mr. Linkie to attempt to put evidence before the court while he is making submissions, or to interject with objections during the Crown’s submissions. The court has a duty to assist the accused in navigating the trial process while at the same time making sure that the fundamental rules of process are followed.
[ 13 ] As such, I have regularly enquired as to whether Mr. Linkie understands exactly what is going on, and taken the time to clearly explain various rules and procedures. I have also told Mr. Linkie on a number of occasions that his submissions are not on point or that he has made certain points already and their repetition is neither necessary nor helpful. I have given directions to both Mr. Linkie and to the Crown regarding certain points of civility.
[ 14 ] I will now address the four grounds raised by Mr. Linkie on his motion.
Conduct in the Courtroom
[ 15 ] Mr. Linkie suggests that my behaviour towards him in the courtroom constitutes a ground for a finding of a reasonable apprehension of bias. The only specific incident he raises is that on one occasion I left the courtroom in what he perceived to be anger. On April 12, 2012, after a long morning of hearing Mr. Linkie and Crown counsel on the s. 140 Application, I called for a break early in Mr. Linkie’s reply submissions. It came at a time when I was trying to assist him in making his reply, by highlighting the issue raised by Crown counsel that I identified as a threshold issue. Perhaps Mr. Linkie did not understand that I was attempting to make sure that he responded to a key argument made by the Crown and that I did not need to hear him again on points that had already been covered. In any event, in a courteous way, I called for a break. What Mr. Linkie perceived as anger would be better described as frustration. Upon resumption of the proceedings I gave Mr. Linkie a full explanation of why I was asking him to direct his submissions to a particular area.
[ 16 ] I am confident that this sequence of events would not lead a reasonable, impartial person to believe I possessed any leaning, inclination, bent or predisposition towards one side or another or a particular outcome in this situation. This case requires some management and it has been even handed. Crown counsel requires less direction that Mr. Linkie. This should not come as a surprise to Mr. Linkie, who is not as schooled or experienced in the law as Crown counsel. I have gone out of my way to meet Mr. Linkie’s reasonable requests, including facilitating his wish to have access to recordings of the proceedings. I suggested we could do better than having him make the recordings himself and directed the Ministry of the Attorney General to provide him with copies of the digital recordings. I also allowed his motion for variance of the terms of his release, and I have consistently been responsive to his concerns about the status of disclosure, and made these issues a priority.
The written endorsement
[ 17 ] With respect to Mr. Linkie’s allegation that my failure to release a written endorsement gives rise to a reasonable apprehension of bias, this matter arose on March 26, 2012. I indicated near the end of the day that I would make a written endorsement respecting the terms of release of disclosure and recording of the proceedings. The terms of release had been presented by Crown counsel and earlier in the day, a conditional agreement had been reached that Mr. Linkie would sign an undertaking essentially saying that he would abide by terms not to release or publish the disclosure provided to him. After the lunch break on that day, I provided a written endorsement on one matter and advised the parties that I would provide the other endorsements at the end of the day. By the end of the day, by agreement, arrangements had been made with respect to both endorsements: Firstly, Mr. Linkie agreed to attend the Crown’s office the next day to sign the amended undertaking regarding release of the Crown’s disclosure and secondly, we had learned that the court would be able to provide Mr. Linkie with CD’s of the digital recordings.
[ 18 ] Although I indicated that I would provide a written endorsement, I left North Bay without having done so and by the time I returned two weeks later for the April 12 date, I had quite simply forgotten that the written endorsement was outstanding. In my mind, the importance of the endorsement was diminished insofar as both issues were, as best I understood, completely resolved, and that resolution was on the record.
[ 19 ] There is nothing that could constitute bias or partiality in the simple omission of not issuing a written endorsement on one of the many motions I heard. I remain the presiding judicial officer and Mr. Linkie can and has brought back any issues with my orders to me for rectification or explanation. On the issue of disclosure for example, when he explained that he was not able to access the files from the CD, I required Crown counsel to have the police officer in charge of the file appear in court to fully explain and demonstrate how to access the electronic files. I did not need, nor did Mr. Linkie require any written endorsement to have the order enforced. I did it myself on Mr. Linkie’s request.
Findings on the s. 140 Application
[ 20 ] The third ground Mr. Linkie raises in support of his motion is my finding on the motion for a stay based on s. 140 of the Courts of Justice Act . That decision has been released: R. v. Linkie , 2012 ONSC 3675 . It is a reasoned decision which applies the law to the facts. I dismissed the motion on the basis of my understanding of the applicable law.
[ 21 ] I need comment no further on the allegation that my decision on the stay motion constitutes bias on my part. If the eventual verdict in this matter is appealed, the interlocutory decisions and reasons will form part of the record and will be available for consideration by the Court of Appeal. As of this point, I am confident that no informed, reasonable person would find that those reasons disclose a partiality in any respect.
Out-of-courtroom inquiry
[ 22 ] The final ground Mr. Linkie relies on for this motion is that I spoke to a colleague, Justice Rodgers of the Ontario Court of Justice in North Bay, on April 12, 2012, and allegedly asked him to go to see Mr. Linkie’s friend and question him. I understand that Mr. Linkie is particularly concerned about something Justice Rodgers apparently said to a justice of the peace whom Mr. Linkie describes as his friend and part of his support network. I do not know anything about the Justice of the Peace in question, his involvement in this case, or his relationship to Mr. Linkie.
[ 23 ] On March 26, 2012, Mr. Linkie referred on a number of occasions to various people in the courtroom who he had subpoenaed to be there to testify on his behalf. From time to time, he referred specifically to certain individuals who were there who could give evidence in support of his positions on certain preliminary issues, including a North Bay transit supervisor, a court clerk, a transit officer, and two police officers.
[ 24 ] At the start of proceedings on April 12, 2012, the court clerk alerted me to the fact that a device somewhere in the courtroom was either making a noise or interfering with the recording equipment. I asked the people in attendance if anyone had a machine running that might be causing the problem. I was advised by Crown counsel and the court registrar that the issue was a hearing aid, worn by a gentleman in the public seats of the courtroom. They identified the gentleman as Justice of the Peace Brownell. I made inquiries directly to him about his ability to hear the proceedings and was told that he had turned off his amplifier. I also asked if he wanted some accommodations so he could follow the proceedings. He told me he did not, and that was the extent of what occurred in the courtroom.
[ 25 ] I was curious following this interaction as to whether the justice of the peace had sat in court for much of the day as a result of a subpoena. Although there is no prescribed protocol, it is unusual in my experience for a judicial officer to go into another courtroom unannounced. I do not recall it ever happening to me before without a word from the visiting judge or justice of the peace, before or after the proceedings, and I have always done the same when I visited the courtrooms of other judicial officers. As I say, I know of no particular rule regarding this practice, nor do I say that there is a rule.
[ 26 ] I have only a vague recollection of what occurred after court that day. Justice Rodgers has an office by the elevator. I spoke to him in passing on my way out of the building. Having in mind that Mr. Linkie had referred to potential witnesses in the body of the court, I believe I asked him if he knew why a Justice of the Peace was in the courtroom for the procedural motions. It was a completely innocent question. Justice Rodgers had no idea and that was the end of our discussion on that point. What Justice Rodgers may or may not have later said to Justice of the Peace Brownell is not in my knowledge.
[ 27 ] I could not have known that this particular person was there as Mr. Linkie’s friend and supporter or whether he was there as an observer or as the result of a subpoena. He was identified as a justice of the peace, sitting in a rather full section of the public area of the courtroom. No reasonable person, informed of the proceedings would reach a conclusion that I was biased on the basis of this innocent query.
Conclusion
[ 28 ] I believe that an impartial, informed and reasonable observer would find nothing in the conduct of this matter to this date which could suggest that I had formed or seem to have formed an opinion or held a bias toward one of the parties or toward any particular result.
[ 29 ] For these reasons I dismissed the motion that I recuse myself on the basis of a reasonable apprehension of bias.
Madam Justice P.C. Hennessy
Date: September 28, 2012
COURT FILE NO.: CR11-17
DATE: 20120928
ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – Michael Linkie DECISION ON MOTION REQUESTING RECUSAl Hennessy J.
Released: September 28, 2012