COURT FILE NO.: CRIMJ(F) 292/13

DATE: 20130620

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

J. Schaffer, for the Crown

• and -

JUNIOR OSAS EBAGUA

M. Hamalengwa, for the Defence

HEARD: May 30, 2013

APPLICATION FOR REMOVAL OF TRIAL JUDGE

Lemon J.

Issue

1The Applicant, Mr. Ebagua, is being tried for assault in the Ontario Court of Justice. He seeks an order in this court removing the trial judge and appointing another judge to preside over his trial.

2The Applicant submits that:

a) there is a reasonable apprehension of bias that the trial judge is partial to the Crown;

b) the trial judge was not attentive to the evidence being tendered;

c) the trial judge permitted a Crown witness “to abuse the accused” during the trial;

d) the trial judge provided insufficient reasons on a mid-trial ruling to recuse himself; and

e) the trial judge interrupted and curtailed cross-examination by the accused’s counsel

3The application was heard on Thursday May 30th and the trial was to be continued on Monday June 3, 2013. After argument, I dismissed the application for written reasons to follow. These are those reasons.

Background

4The trial commenced on November 7, 2011. At that time, Mr. Ebagua was unrepresented. During the first day of trial, the following occurred:

THE COURT: Ma’am, is the, is the – the police officer who investigated, is he going to be a witness, is he?

THE CROWN: No, Your Honour.

THAT COURT: Why?

MR. EBAGUA: Your Honour ….

THE COURT: Just a minute, sir.

THE CROWN: He’s not available today, Your Honour.

THE COURT: Yes, sir, what did you have to say?

MR. EBAGUA: Your Honour, I would have a serious issue and problems with that as per the defence. She has indicated a lot of stuff. She was full with blood all over her face. Obviously, the police officer that attended to her that day would see the blood all over her face. So, at this point. I am going to be saying to the Crown that they are trying to halt a very important – the main core element of this matter. And also it’s my word against hers. Maybe Daniel, I guess he’s – and the police saw her with blood all over and the Crown did not bring the police.

THE COURT: Yes.

THE COMPLAINANT; Daniel wasn’t there.

THE COURT: Madam Crown, I must say one thing.

THE COMPLAINANT. Don’t lie, Junior.

THE COURT: There is one …

THE COMPLAINANT . Sorry.

THE COURT: … One allegation that there was blood on the face, which is a very significant piece of evidence, and there should be some justification by the officer who investigated is not a witness.

THE CROWN: Um-hum. Um ….

THE COURT: If necessary will give you an adjournment, but we cannot proceed

A. Okay.

THE COURT: … without that significant witness.

A. Let’s do that.

MS. NORMAN: Well, in respect, Your Honour, you have this witness’s evidence. It’s up, it’s up to Your Honour to determine what weight you give to her evidence versus what weight you give to his evidence. The officer who – the investigating officer, he’s out of the country right now. There was an officer that observed the injuries. He’s no longer a Peel Regional police officer. I was under the impression that he was going to be here today. My case, I’ll call it as I will, Your Honour, and Your Honour will give as much weight, but I don’t see how this particular discussion at this point time has anything to do with the admissibility of the 911 call.

THE COURT: No, no, admissibility is not the issue but I am warning you that there is a very significant point which has to be established, namely the blood on the face of the alleged victim.

MS. NORMAN: Right.

THE COURT: Now, as I have told you already, if the police officer is not present today, we can, we can adjourned the matter.

MS. NORMAN: Um-hum.

THE COURT: But I would really seriously inform you that you cannot proceed without such an important piece of evidence.

MS. NORMAN: Well, let me, let me request to hold it down because my understanding is that this officer was going to be attending today. He’s coming from Sudbury, so….

THE COURT: Okay. Well, which – this is the officer who saw something, correct?

A. Well, wouldn’t be ….

MS. NORMAN: My understanding is that …

THE COURT: Ma’am, please.

MS. NORMAN: … my understanding is that this is the officer who observed the injuries, who relayed it to the other officer.

THE COURT: Exactly. That’s the man I’m talking about.

MS. NORMAN: Right. Um, but nonetheless, Your Honour, even if this officer is not here, I’m not going to prolong this any, any further. You’ll have the evidence of each one of these witnesses, um, and it’s whether or not you believe beyond a reasonable doubt that the Crown’s proven its case.

THE COURT: Well, that’s your decision, but I am warning you that that will be a very, very difficult situation.

MS. NORMAN: Yes. And Your Honour is well aware that Your Honour has to weigh the evidence of both, and if you prefer the evidence of one versus the other, the knot comes down to the W.D. analysis. In the evidence is what it is. It will be what you accept it to be or not accept it to be.

THE COURT: No, but there is another significant factor to which I am drawing your attention.

MS. NORMAN: I, I’m aware, Your Honour.

THE COURT: Hmm.

MS. NORMAN: I am aware. But I will call my case as I see it. But I would like to hold it down to explore …

THE COURT: Yes.

MS. NORMAN: … where this other officer is.

THE COURT: We can hold it down. Do you want to hold it down now?

MR. EBAGUA: Yes.

THE COURT: Now, Counsel, before you argue against this, keep in mind that you, yourself, requested me to hear the remaining portion of the tape.

MR. EBAGUA: Yes. My, my own part.

THE COURT: How can you now say that you’re – are you objecting to the introduction of the tape? That’s all we are concerned about.

MR. EBAGUA: No, no. I am not, I am not saying that it was not a communication between ourselves and the police officer, and the 911 but what she was saying are not genuine facts.

THE COURT: …

MR. EBAGUA: The issue is the person on the other side, do not see me grabbing; and she’s talking fluently from the phone, nobody’s squishing her, nobody’s mug ….

THE COURT: Sir, you are giving evidence now. All we are concerned at this particular point is …

MR. EBAGUA: Yes.

THE COURT: … the admissibility of the tape. That’s all we are concerned about. Do you think I am going to believe something that somebody set on a tape without further evidence?

MR. EBAGUA: Okay. Your Honour, why would I say that this tape should not be even put – in collaborating (sic) this tape, which is the key factor, the officer who seen her face all bloody should collaborate (sic).

THE COURT: I’ve already said that to Crown.

MR. EBAGUA: Okay. Based on that, Your Honour, I’m in your hands.

Later that day:

MS. NORMAN: …This officer is not on shift today. So, the staff sergeant made efforts to contact the Sudbury officer at home to no avail. Messages were left. My phone number and direct extension were left with the officer.

So, nonetheless, I’m not in a position to call that officer today and I would like to take Your Honour up on the offer to seek an adjournment to procure that officer and, um, continue the case.

THE COURT: I think it is very significant. Yes.

SUBMISSIONS BY MR. EBAGUA:

MR. EBAGUA: Objection. During the talk, from the beginning, the Crown, has indicated that the officer was not important and that she would put it in your hands that, um, she’s going to put her case like that and then you’ll be up to put weight.

So it is, um – we have a lot of time. This is the second trial date and the officer was duly subpoenaed or talked to on the 4th and the Crown is of the notion that this witness is not important, like that of Daniel Getsey (ph). So, for the Crown to take a 360 change in turn around, wasting the resources and the time of the Court, it is not – it is justice delayed against the common against the defence. Plus, she made it clear that she’s going to leave and put her case today the way it is.

She already knew that the officer is not going to be in attendance and she would have taken the adjournment request not to stuck us (sic) in the middle of the road to say, this is where were going, while -- because I have Daniel Getsey here.

MS. NORMAN: May I respond?

THE COURT: You will get the adjournment, ma’am.

MS. NORMAN: Thank you.

R U L I N G

KHOORSHED, J. (Orally):

You don’t have to respond. I think it’s very necessary that this witness, and, therefore, I will grant you the adjournment.

Now, what about the trial date?

MS. NORMAN: Thank you. We’ll have to go get one, but I, I do feel it prudent that I do have to respond to some of my friends submissions, Your Honour.

THE COURT: There is no need to do that.

5As further background to one of Mr. Ebagua’s complaints, the following occurred during the cross-examination of the complainant:

Q. I put it to you that you just came here to make and fabricate stories.

A. And I’m putting it to you that it’s you that’s the Nigerian liar, scammer, crack head. Not me. Okay. You destroyed my life, Junior, and that’s why I’m here. Okay.

Q. In the letter that we see today, when you say “counselling”, what is that supposed to mean?

A. I don’t understand your question. The counselling was because I was now pregnant for a crack-head who I wanted to go to rehab so that may be – ‘cause I was not going to have an – right. That’s why.

Q. Okay. I put it to you that you are the crack user?

A. Right. We could go to my – they, they’ve, um, and drug testing on me. Let’s – why don’t you do the drug testing and see if you come clean, Junior? Let’s bring benefit to the table. I’m clean. You tried to destroy me.

Q. Have you – now – okay. Have you done drugs in that house?

MS. NORMAN: What’s the relevance of that question?

MR. EBAGUA: The relevance of it is that I said on the tape that she’s a crack-head.

THE COURT: Sir, your taking drugs, her taking drugs has nothing to do with an alleged assault. Let’s stick to the point. As a matter of fact, I would advise you to stick to the point from your interest rather than hers.

MR. EBAGUA: Okay. Thank you. Now I don’t have any further questions for her.

THE COURT: That’s it?

MR. EBAGUA: Yes, that’s it.

6From that first day, the matter was adjourned a number of times over 10 months to find a date to continue the trial. I was not provided with all of the transcripts of those various dates. By September 7, 2012, however, Mr. Ebagua had retained counsel. On that day, it appears that the matter was before the court only to set a date for the continuation of the trial. Although it does not appear that an application record was filed, Mr. Hamalengwa moved as follows:

MOTION BY MR. HAMALENGWA:

I have read the transcripts of the entire proceedings, Your Honour, and the – I am going to respectively request two alternatives: (1) a mistrial, (2) a recusal of Your Honour from the case.

THE COURT: Why?

MR. HAMALENGWA: Well, that’s why I’m saying I’m making two points.

THE COURT: Make it short, sir.

MR. HAMALENGWA: Yeah. The first point is my friend on November 7th, 2011, made it clear she was going to call only one witness, made it clear at the outset of the trial, and I have the transcripts here. But you, Your Honour, on your own motion, literally, all or most likely made the, the case for the Crown for an adjournment on the basis that the witness that the Crown is not calling, for that case could have finished that very day.

THE COURT: Uh-huh.

MR. HAMALENGWA: Right. You said, “No, no, no. I want to hear from that witness.” The Crown even said, “Your Honour, I will call the, the case the way I, I see it.”

THE COURT: Okay. Okay.

MR. HAMALENGWA: But you prevented the Crown from concluding that case in a matter where the accused is not represented, you try to make the Crown’s case.

THE COURT: I did prevent it, sir. I was concerned that he was not represented properly.

MR. HAMALENGWA: No, no, no. That’s not why you – you are not going to – that’s why you are basically helping the Crown. At the end of the day, the Crown eventually capitulated to your suggestion that she seek an adjournment, which she was resisting. Now, what is that tell us?

THE COURT: Okay.

MR. HAMALENGWA: It’s, it’s not, it….

THE COURT: Now, first of all, okay, okay, you said enough.

MR. HAMALENGWA: Yes.

R U L I N G

KHOORSHED, J. (Orally):

Recusal is denied. I believe I did the right thing, so I am dismissing that motion.

Secondly, as far as this witness is concerned, have you come to a conclusion whether you are willing to go through the telephone, yes, or no?

MR. HAMALENGWA: No.

THE COURT: You are not?

MR. HAMALENGWA: Uh-huh.

THE COURT: Now, what is your position regarding that?

MS. NORMAN: Well, I’ll file a formal application….

MR. HAMALENGWA: Well, I haven’t finished my submissions.

THE COURT: But you are going on and on saying the same thing.

MR. HAMALENGWA: No, no, no, I haven’t finished my, my submissions.

THE COURT: All right.

SUBMISSIONS BY MR. HAMALENGWA:

The other reason for recusal, Your Honour, is this witness literally abused my client without your intervention. He [sic] went on to say, “This Nigerian liar, scammer, and crack head.”

THE COURT: In court?

MR. HAMALENGWA: Yes. It’s in the….

THE COURT: What are you talking about? I was here.

MR. HAMALENGWA: Yes. Well, you never intervened. It’s right in the transcript. So….

THE COURT: I never heard it.

MR. HAMALENGWA: Well, it’s right in the transcript. And she went on to even say, “You brought your ugly face.” I mean, if it was – if the shoe was on the other side, defence counsel would have been tossed out, and you never intervened. This woman was abusing my client in this courtroom, and I have the transcripts.

THE COURT: Well, I’ll put it on record that I never heard any such thing. If it’s said, it maybe I didn’t understand the accent correctly. And nobody at that time mentioned that rude language was being used. Do you remember any of this?

MS. NORMAN: I remember it being contentious, Your Honour. But the issue is that you are a judge sitting alone. There is no jury here to be prejudiced or biased.

THE COURT: Exactly.

MS. NORMAN: Or have their mind poisoned. If you heard a discreditable conduct or unfortunate language coming out of the complainant’s mouth, you can disabuse your mind of any of those…

THE COURT: Absolutely.

MS. NORMAN: …any of those comments. And I trust Your Honour will be able to assess the evidence, and do the proper legal test….

THE COURT: Without hesitation. And I’ll go one….

MR. HAMALENGWA: The, the law is clear. Right now in Ontario and Canada, a judge cannot be sitting and allow a, any witness or counsel, Crown or defence abuse a witness. Here on page 34, and you are sitting right there, the, the witness saying, “I am putting it to you that it’s you, that’s the Nigerian liar, scammer, crack head.” And this is not the only time she, she use this kind of abusive language. I mean, a judge should at least warn the client.

THE COURT: Okay.

MR. HAMALENGWA: Yeah. So….

KHOORSHED, J. (Orally):

You have your transcript. You have made that clear.

MR. HAMALENGWA: Uh-huh.

THE COURT: One, I didn’t clearly hear because of an accent problem. Secondly, I am not prejudiced because of any statement made by anybody. Your motion for recusal is denied.

Next point, as far as this particular issue of the witness being – coming or not coming, madam, that’s a more significant issue.

MS. NORMAN: Yes. And what I’ll do, Your Honour, is the Criminal Code permits under Section 714 to have that witness testify. I will file the appropriate materials within the requisite guidelines and the Rules of the Ontario Court, and it have to be argued before Your Honour, and Your Honour will have to make that determination whether or not you allow that officer…

THE COURT: Fair enough.

MS. NORMAN: …to do so.

THE COURT: Fair enough. When do you want to come back?

Legal Parameters

7The Applicant relies upon R. v R.D.S. [1997] 3 S.C.R. 84 and the test set out at paras 11 and 31:

11The test for finding a reasonable apprehension of bias has challenged courts in the past. It is interchangeably expressed as a “real danger of bias,” a “real likelihood of bias,” a “reasonable suspicion of bias” and in several other ways. An attempt at a new definition will not change the test. Lord Denning M.R. captured the essence of the inquiry in his judgment in Metropolitan Properties Co. v. Lannon, [1969] 1 Q.B. 577 (C.A.), at p. 599:

[I]n considering whether there was a real likelihood of bias, the court does not look at the mind of the justice himself or at the mind of the chairman of the tribunal, or whoever it may be, who sits in a judicial capacity. It does not look to see if there was a real likelihood that he would, or did, in fact favour one side at the expense of the other. The court looks at the impression which would be given to other people. Even if he was as impartial as could be, nevertheless if right-minded persons would think that, in the circumstances, there was a real likelihood of bias on his part, then he should not sit. And if he does sit, his decision cannot stand. Nevertheless there must appear to be a real likelihood of bias. Surmise or conjecture is not enough. There must be circumstances from which a reasonable man would think it likely or probable that the justice, or chairman, as the case may be, would, or did, favour one side unfairly at the expense of the other. The court will not inquire whether he did, in fact, favour one side unfairly. Suffice it that reasonable people might think he did. The reason is plain enough. Justice must be rooted in confidence: and confidence is destroyed when right-minded people go away thinking: “The judge was biased.”

31The test for reasonable apprehension of bias is that set out by de Grandpré J. in Committee for Justice and Liberty v. National Energy Board. Though he wrote dissenting reasons, de Grandpré J.’s articulation of the test for bias was adopted by the majority of the Court, and has been consistently endorsed by this Court in the intervening two decades. De Grandpré J. stated, at pp. 394-95:

. . . 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.... [T]hat 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.”

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”. [References removed]

8All of the above relate to principles generally applied by an appeal court after trial has been completed. It must be kept in mind that this application is a mid-trial application.

9In R. v. Felderhof, [2002] O.J. No. 4103 (S.C.) at paras. 11-16, aff’d (2004), 68 O.R. (3d) 481 (C.A.), Justice A. Campbell provides a helpful discussion of the availability of a prohibition order in the middle of a trial. In particular:

11. A heavy burden lies on any applicant who asks the court to remove a judge in the middle of an ongoing trial.

12. There are rare cases where mid-trial intervention has been justified on behalf of an accused person. A gross denial of natural justice, an irreparable judicial violation of constitutional rights or a reasonable apprehension of bias or prejudgment could amount to a loss of jurisdiction during the course of trial.

13. Such cases are few and far between. Cases where prohibition has issued at the behest of the prosecutor are even virtually unprecedented. The applicant must demonstrate that this case is almost unique in our legal history. Despite its unusual aspects, nothing in this case displaces the general rule against mid-trial intervention. [Emphasis added and footnotes removed]

10More recently, in R. v. Czerniak, 2010 ONSC 5067, [2010] O.J. No. 3904, Trotter J. said:

16 In my view, establishing a reasonable apprehension of bias on a mid-trial application for prerogative relief and at the post-verdict appellate stage engage the same high standard of review. In R.D.S., supra, the Court recognized the strong presumption of impartiality in judges. As L'Heureux-Dube and McLachlin JJ. wrote (at para. 32): "Thus, reviewing courts have been hesitant to make a finding of bias or to perceive a reasonable apprehension of bias on the part of a judge, in the absence of convincing evidence to that effect." Similarly, Cory J. (at para. 113) held that the "threshold for a finding of real or perceived bias is high." The burden may appear steeper in the former (mid-trial) situation because the proceedings are incomplete. On appeal, the reviewing court has the benefit of reviewing the entire record and may be able to evaluate the claims of bias in a broader context. [References removed]

Analysis

11There is no doubt that a first reading of the transcript relating to the trial judge’s wish to have the Crown call the police officer, could appear to suggest that the court was requiring the Crown to fill in any holes in the case that the trial judge might have perceived.

12A further reading however suggests that the trial judge was making sure that all necessary evidence was before the court for the benefit of the accused. Mr. Ebagua himself had initially requested the police officer to be in attendance.

13If the trial judge did not accept the evidence of the complainant and needed the police officer’s evidence to corroborate that evidence, then certainly it would appear that the trial judge was biased against the accused. On the other hand, if the trial judge found the evidence of the complainant to be believable, then the evidence of the police officer might well not corroborate that evidence to the benefit of the accused. The Applicant expressed the view that the officer’s evidence would be to his benefit.

14The trial judge’s comments regarding the recusal motion would suggest that he had those concerns; he was concerned that Mr. Ebagua “was not represented properly”. A review of the later cross-examination transcript bears that out.

15It appears now that the officer’s evidence will likely corroborate the complainant’s evidence. However, it also appears that the officer’s notes may indicate frailties in that evidence. The fact that the officer’s evidence is, at least arguably, supportive of the Crown’s case only became apparent once he testified. On the first day of trial, his notes apparently did not support the Crown’s case. Certainly, if the officer’s evidence supported the defence case, the defence would have no objection to the trial judge’s request that the officer be called. The trial judge would have no way of knowing one way or the other on that first day of trial. All he knew of the officer’s evidence was that the accused wanted it to be heard for his benefit and the Crown wished to avoid that.

16Were I to grant this application on this basis, I would be impugning the trial judge and the administration of justice on but one of the interpretations of the transcript and nothing more. The standard is much higher than that. The informed reasonable person, having thought the matter through, could not conclude that there was a reasonable apprehension of bias on the part of the trial judge based on this evidence.

Balance of the Complaints

17The Applicant argues that no one complaint as set out above would be sufficient to remove the trial judge. He submits, however, that I should review all of the incidents in a cumulative fashion to find a reasonable apprehension of bias. I agree that that is the appropriate way to consider the problem; however, if the first complaint is not made out, the balance of the complaints, even cumulatively, is not the sort of thing that should support a mid-trial application. I agree with Justice Trotter’s comments in Czerniak, as above, that the burden is steeper on a mid-trial motion. I make no comment one way or the other about the balance of the complaints, individually or collectively, and leave it, if necessary, to an appeal court once the trial is completed.

18In my view, the Applicant has failed to meet the standard to remove the trial judge and the application is therefore dismissed.

Lemon J.