SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CR-12-50000027-00AP
DATE: 20130129

RE: HER MAJESTY THE QUEEEN, Respondent

AND:

LUIGI PEPE, Appellant

BEFORE: MacDonnell, J,

COUNSEL:
Nicholas Xynnis, for the Appellant
Stephania Fericean, for the Respondent

HEARD: January 24, 2013

On appeal from the conviction entered by Justice David Cole of the Ontario Court of Justice at Toronto.

Appeal Book ENDORSEMENT

[1] At the conclusion of the hearing of this appeal, the conviction was set aside and a new trial was ordered with written reasons to follow. These are those reasons.

[2] On February 7, 2012 the appellant appeared before the Ontario Court of Justice and pleaded not guilty to a charge of operating a motor vehicle having consumed alcohol in such a quantity that the concentration thereof in his blood exceeded 80 milligrams of alcohol in 100 millilitres of blood.

[3] The sole witness for the Crown was the arresting officer, Constable Sgroi. He testified that at about 1:15 a.m. on December 18, 2010 he investigated a driver at a RIDE check point on Black Creek Drive in Toronto. Sgroi formed a reasonable suspicion that the driver had alcohol in his body and made a demand for a screening sample of breath to be provided into an approved screening device (ASD). The officer’s evidence with respect to what happened next was as follows:

So I made this demand to the driver and I asked the driver if he understood. He said, yes, he does. At this point, I was given – excuse me, I was given identification from the driver. He gave me an Ontario driver’s licence, on it was a photographic ID, which matched the person I was speaking to, obviously, the driver. This person was ID’d as, first name Luigi, L-U-I-G-I, last name Pepe, P-E-P-E. His date of birth was the 12th – excuse me, the 9th of December, 1978. And his address and postal code were also on the driver’s licence.

[4] The driver complied with the ASD demand and registered a “fail”. Based on that reading, Constable Sgroi arrested the driver for operating ‘over eighty’, made an approved instrument demand, and transported the driver to the police station for breath tests. In due course, and within the time frame set forth in s. 258(1)(c) of the Criminal Code, the driver provided two suitable samples of his breath into an Intoxilyzer 8000C. The analysis of each of those samples revealed a blood alcohol concentration of 130 milligrams of alcohol in 100 millilitres of blood.

[5] Throughout his evidence, Constable Sgroi referred to the person with whom he dealt that morning as either “the subject” or “the driver”. He did not, for example, refer to him as “the accused”. Nor did he point to the appellant, seated beside his counsel, as the person he had arrested.

[6] After the Crown closed its case, the appellant’s counsel (Mr. Dotsikas) elected to call no evidence. The following exchange then occurred:

MR. DOTSIKAS: …[My] client was never identified. No one pointed him out as being the individual they’ve been talking about as the one that’s before the court, sitting next to me. That’s all I have.

THE COURT: You can put him back up for that piece of information.

MR. DOTSIKAS: Even after the Crown’s case is closed?

THE COURT: Yes. I will permit the Crown to reopen. Do you see the accused person you arrested that night?

CONSTABLE SGROI: Yes, sir. He’s sitting …

THE COURT: Indicating the accused. Thank you. That is your only argument?

MR. DOTSIKAS: Yes.

THE COURT: Thank you. I am satisfied that the Crown has proven the case beyond a reasonable doubt. The accused is found guilty as charged.

[7] The appellant raises two grounds of appeal. First, he submits that the trial judge improperly exercised his discretion to permit the Crown’s case to be reopened to receive further evidence. Second, he submits that the involvement of the trial judge in the calling and presentation of the further evidence gave rise to a reasonable apprehension of bias.

[8] There is force to the appellant’s submission that it was not open to the trial judge to permit the Crown to reopen its case and to call further evidence on the issue of identification after the defence had elected to call no evidence and had embarked upon final submissions: see, e.g., R. v. M.B.P., 1994 125 (SCC), [1994] 1 S.C.R. 555. The issue is somewhat beside the point, however, because that is not what happened. The Crown never sought to reopen and played no role in the calling of the additional evidence to supplement its case. Those steps were taken by the trial judge, and the real issue is whether his conduct in doing so gave rise to a reasonable apprehension of bias.

[9] To be clear, there is no allegation or suggestion of actual bias in this case. The issue, rather, is whether a reasonable person, with knowledge of all the relevant circumstances, including “the traditions of integrity and impartiality that…judges swear to uphold” would apprehend that there was: R. v. R.D.S., 1997 324 (SCC), [1997] 3 S.C.R. 484, at paragraph 111. Focusing the question on whether there was an apprehension of bias is “the manifestation of a broader preoccupation about the image of justice [because] there is an overriding public interest that there should be confidence in the integrity of the administration of justice”: Wewaykum Indian Band v. Canada, 2003 SCC 45, [2003] 2 S.C.R. 259, at paragraph 66. Simply put, it is not sufficient that the courts in fact be impartial, they must also appear to be impartial. The vital role played by that appearance is captured in the oft-quoted axiom that “it is…of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done”: R. v. Sussex Justices, Ex parte McCarthy, [1924] 1 K.B. 256, at p. 259.

[10] In R. v. Torbiak and Campbell (1974), 1974 1623 (ON CA), 18 C.C.C. (2d) 229 (Ont. C.A.), Kelly J.A. stated at p. 230-231: “The position of established neutrality requires that the trial Judge should confine himself as much as possible to his own responsibilities and leave to counsel and members of the jury their respective functions”. Where, as here, the complaint is that the trial judge has taken on the function of the Crown, the test to be applied is as was stated by Martin J.A. in R. v. Valley (1986), 1986 4609 (ON CA), 26 C.C.C. (3d) 207 (Ont. C.A.), at p. 232:

The ultimate question to be answered is not whether the accused was in fact prejudiced … but whether he might reasonably consider that he had not had a fair trial or whether a reasonably minded person who had been present throughout the trial would consider that the accused had not had a fair trial. [emphasis in the original]

[11] The threshold for a finding of an apprehension of bias is high. There is a presumption that judges will carry out their oath of impartiality. To displace that presumption, cogent evidence is required: R.D.S., at paragraphs 113, 116 and 117. In Committee for Justice and Liberty v. National Energy Board, 1976 2 (SCC), [1978] 1 S.C.R. 369, at p. 395, de Grandpré J. stated that “The grounds for [an] apprehension [of bias] must…be substantial… [I] refus[e] to accept the suggestion that the test be related to the very sensitive or scrupulous conscience”.

[12] In my respectful view, the manner in which the trial judge responded to the appellant’s submission that the Crown had failed to prove a fact that was essential to a finding of guilt would reasonably cause the appellant to consider that the trial judge had stepped away from a position of neutrality and was endeavoring to assist the prosecution. It was for the Crown, not the trial judge, to decide whether to seek to reopen the Crown’s case to supply the missing evidence. Further, it was for the Crown, not the judge, to present that evidence if permission to reopen were granted. Here, on his own motion, and without inviting submissions from either the Crown or the defence, the trial judge reopened the prosecution’s case, called the witness himself, adduced the missing evidence, and found the appellant guilty based on that evidence.

[13] The trial judge presides in a very busy jurisdiction, and I have no doubt that he was motivated by a wish to expeditiously move the proceedings to the point at which he felt they would inevitably arrive. I am satisfied, however, that to a reasonable observer it would appear that the trial judge had departed from a position of impartiality between the parties.

[14] Accordingly, the conviction must be set aside. The position of the appellant is that an acquittal should be entered. He submits that in the absence of the evidence introduced by the trial judge there was no evidence of identity and that he would have been entitled to an acquittal. He submits that it would be unfair to permit the Crown a second opportunity to call the evidence that it failed to call at the first trial.

[15] I do not agree that that there was no evidence of identity led by the Crown as part of its case. Put briefly, the fact that the name of the person investigated by Constable Sgroi and the name of the appellant, who appeared in court to answer the charge, were the same was sufficient to establish a prima facie case that the appellant was the person investigated: R. v. Longmuir, [1982] O.J. No. 119 (C.A.); R. v. D.B., 2007 ONCA 368, [2007] O.J. No. 1893 (C.A.). In the absence of evidence to the contrary, it would have been open to the trial judge, based only on the evidence introduced as part of the Crown’s case, to conclude that the appellant was the person investigated.

[16] Accordingly, a new trial is ordered.

MacDonnell, J.

Released: January 29, 2013