ONTARIO
SUPERIOR COURT OF JUSTICE
Court File No.: 11-10657
Date: 2014/03/06
PUBLICATION BAN IN EFFECT UNDER S. 648 OF THE CRIMINAL CODE
BETWEEN:
HER MAJESTY THE QUEEN
Applicant
– and –
KHAMEA LOUANGRATH
Respondent
Matthew Geigen-Miller, for the Applicant
David Anber, for the Respondent
HEARD: February 26, 2014
RULING #3: APPLICATION FOR A MISTRIAL
Aitken J.
Nature of the Application
[1] On February 26, 2014, during the course of the trial, Defence counsel brought an application for a mistrial on the grounds of reasonable apprehension of bias. In his written and oral submissions, Defence counsel did not allege actual bias. After hearing the submissions of Defence and Crown counsel, I dismissed the application, with written reasons to follow. These are those reasons.
Test for Reasonable Apprehension of Bias
[2] The test for reasonable apprehension of bias on the part of the trial judge was explained by de Grandpré J. in Committee for Justice and Liberty v. Canada (National Energy Board), 1976 2 (SCC), [1978] 1 S.C.R. 369, at pp. 394-395, and has been followed ever since:
…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.
[3] The Supreme Court of Canada, in R. v. R.D.S., 1997 324 (SCC), [1997] 3 S.C.R. 484, at paras. 48-49, stated:
… the reasonable person contemplated by de Grandpré J., and endorsed by Canadian courts is a person who approaches the question of whether there exists a reasonable apprehension of bias with a complex and contextualized understanding of the issues in the case. The reasonable person understands the impossibility of judicial neutrality, but demands judicial impartiality.
Before concluding that there exists a reasonable apprehension of bias in the conduct of a judge, the reasonable person would require some clear evidence that the judge in question had improperly used his or her perspective in the decision-making process; this flows from the presumption of impartiality of the judiciary. There must be some indication that the judge was not approaching the case with an open mind fair to all parties. Awareness of the context within which a case occurred would not constitute such evidence; on the contrary, such awareness is consistent with the highest tradition of judicial impartiality.
Grounds of the Application
Possibility of Excusing a Juror
[4] Twelve jurors and two alternates were picked on the morning of February 18, 2014. When juror number two’s name had originally been called, he explained to the court that he had planned to be away later that week for a family event in Toronto, and that this was the only reason why he might not be able to serve on the jury. When asked about the importance of the event, he said that he wanted to serve as a juror if chosen and that the family event was not of sufficient importance to warrant his asking not to serve. After this interaction, Crown and Defence counsel chose the man for the jury and he became juror number two. Immediately following jury selection and the giving of preliminary instructions to the jury, the jury was excused until February 20, 2014, so that the Crown could bring a voluntariness application.
[5] Before court resumed in the afternoon of February 18, I received a note from juror number two asking if he could be excused for February 20-21 so that he could attend the event in Toronto, as it was important to his family that he be there. He was not asking to be dismissed as a juror; he was, in essence, asking for the trial to be adjourned for two days to accommodate his need to be elsewhere. When court resumed in the afternoon, counsel were advised of the letter, and it was agreed that juror number two would be asked to come to court so that the matter could be canvassed further. Juror number two advised that the event in Toronto was a celebration in regard to the birth of a child to one of his siblings. In his culture, as the eldest male in the family, it was very important for him to be there and to act as the host. It was clear that he was torn between his duty to his family and his duty to serve as a juror when chosen. Defence counsel argued strenuously that juror number two should not be excused, as the Defence did not want to be left with either alternate as a juror. I did not understand some of the arguments advanced by Defence counsel, and I expressed that.
[6] On the one hand, I wanted to be respectful of juror number two and what appeared to be strong beliefs within his cultural heritage as to what he needed to do and at the same time support his obvious desire to serve on the jury. On the other hand, the trial had been scheduled for three weeks, and I was aware that there was going to be at least one voir dire that originally had been scheduled as a pre-trial motion but which was going to be heard during the trial. I did not want to lose a further two days to accommodate juror number two. Finally, and as I expressed to counsel, I did not want to make a decision at the commencement of the trial that ran the risk of tainting the trial and that could be a ground of complaint on any future appeal. With these concerns in mind, I decided to have the jury return on Thursday, February 20, but to then adjourn the trial to Monday, February 24, to give juror number two the opportunity to travel to Toronto on Thursday evening and at least be in attendance at the family event on Friday. That resolution seemed to satisfy everyone at the time. It was a resolution that respected the position of the Defence that they did not want to lose juror number two.
Written Reasons on the Voluntariness Voir Dire (Ruling #1)
[7] At the commencement of the trial, the Crown brought an application for a ruling that a statement given by the accused, Khamea Louangrath, to a civilian member of the Ottawa Police Services employed at a call centre, was admissible. In his submissions relating to the identity of the caller in the context of the common law confessions rule, Defence counsel argued that, if the evidence regarding identity came from the statement itself, something more than “some evidence” regarding identity had to be tendered by the Crown before the statement could be ruled voluntary and admissible. In making this argument, Defence counsel relied on R. v. Evans, 1993 86 (SCC), [1993] 3 S.C.R. 653, a case where the issue of voluntariness was not in play.
[8] In my six-page written ruling released on February 20, 2014, I reviewed what I considered to be the applicable test relating to the identity of the person making the statement in the context of a voluntariness application in a criminal jury trial; namely, the test of “some evidence”, and set out the authorities on which I was relying in arriving at this conclusion (R. v. Gauthier, 1975 193 (SCC), [1977] 1 S.C.R. 441; R. v. Park, 1981 56 (SCC), [1981] 2 S.C.R. 64). I did not refer to the Evans case as I did not consider it relevant to the issue of voluntariness that I was deciding. I went on to review the evidence that was available to satisfy the test in Gauthier, and I concluded that the test had been met in the circumstances of this case. In any event, in the process of reviewing the evidence relevant to the issue of identity of the speaker, I listed evidence extraneous to the statement itself, such as records from the Ministry of Transportation.
[9] If my statement of the law regarding the issue of identity in the context of a voluntariness application was wrong, or if my reasons were inadequate, then these are matters of law that can be addressed on appeal. Errors in law on the part of a trial judge do not equate with bias.
Rulings Throughout the Trial
[10] Although acknowledging that it is not the job of the trial judge to “keep an even score” between the Crown and the Defence on various rulings that need to be made during the course of the trial, Defence counsel advanced as a ground for a mistrial that “a review of the entire trial record would show that the trial judge sided with the Crown on the majority of significant rulings or objections.” Rulings were made during the course of the trial both for and against the Crown and the Defence. I did not keep score. The duty of a trial judge is to use her best efforts to make rulings which are in accordance with the law – nothing more, nothing less.
Ruling on Past Recollection Recorded (Ruling #2)
[11] Both before and at the commencement of trial, Crown counsel advised that he might have to bring an application regarding the admissibility of a written statement prepared by a witness, Tim McCarthy, within days of the incident in question that gave rise to the charges in this case because, although Mr. McCarthy could remember some things from that night, he could not now remember all of the details that were fresh in his memory when he wrote the statement. As explained more fully in Ruling #2, during the course of his examination-in-chief, Mr. McCarthy testified as if he did have a current memory of certain details important to the Crown’s case. As a result, Crown counsel did not pursue his application to have portions of Mr. McCarthy’s statement admitted as past recollection recorded. During his cross-examination of Mr. McCarthy, Defence counsel elicited evidence to the effect that Mr. McCarthy had been relying on his earlier written statement when he testified about the details just referred to. That created confusion as to what, in fact, Mr. McCarthy could currently remember. For this reason, against the objection of Defence counsel, I allowed Crown counsel to re-examine Mr. McCarthy on this discrete point to clear up the confusion. In doing so, I observed that, depending on how Mr. McCarthy responded to the question, Crown counsel would then have to decide whether or not to bring his application to admit past recollection recorded. I warned both counsel that I would want to hear submissions from both of them, at that time, regarding the admissibility of this evidence. Defence counsel objected to my highlighting this issue.
[12] In making this statement, I was stating the obvious, and something that was clearly on the minds of both Crown and Defence counsel. Crown counsel had advised on numerous occasions that, if Mr. McCarthy could not in fact currently remember details important to the Crown’s case, the Crown would be pursuing such an application. The fact that the Crown, quite reasonably, did not believe that it needed to, nor, in fact, had the grounds to bring such an application following examination-in-chief, did not mean that he would not have the grounds to do so during re-examination if, at that time, Mr. McCarthy clarified that, in providing his earlier evidence, he was not using current memory but was relying on past recollection recorded. A voir dire had to be held at that time to determine whether this was evidence that the jury could consider because, if it did not meet the test of past recollection recorded, the jury would have to be advised not to consider some of the evidence that they had already heard.
Motion for a Directed Verdict and Discussions re Modes of Participation
[13] Following the close of the Crown’s case, Defence counsel brought a motion for a directed verdict of acquittal on counts four and five, dealing with the forcible seizure of Mr. Morrice and Mr. Fradette in The Drink by the group of men that accompanied the accused into the nightclub, restrained these two individuals, pushed them out in the back alley, and ultimately assaulted them. The two grounds that Defence counsel advanced in support of his motion were that: (1) the grasping of the two men was momentary and did not involve the exercise of control over them, and (2) even if a forcible seizure happened, there was no evidence that could lead a properly instructed jury to conclude that the accused was a party to that offence.
[14] I dealt with the first ground relatively quickly and concluded that there was evidence upon which a properly instructed jury could find that a forcible seizure had occurred in regard to both Mr. Morrice and Mr. Fradette. I then chose to deal with the question of whether there was evidence that the accused was a party to this offence in the context of determining what modes of participation in regard to the various offences had an air of reality based on the evidence at trial. My starting point was to seek clarification from Crown counsel as to the modes of participation on which he sought to rely in regard to all counts – something that I had asked both counsel to be ready to address on that day. I then expressed my thoughts as to what modes of participation I thought might come into play in regard to all of the counts, based on my understanding of the evidence, to highlight for counsel what I needed to decide before preparing my charge. I anticipated dealing in this context with Defence counsel’s arguments about the lack of evidence to make the accused a party to the offence of forcible seizure. When Defence counsel objected because I had not considered his second ground for a directed verdict of acquittal before we spoke more generally about modes of participation, I apologized and indicated that I would hear his submissions at that time if he wished, but that I had contemplated hearing them in the context of discussions about possible modes of participation regarding all counts. All five counts related to one incident that unfolded over a matter of minutes, starting with what was alleged to be forcible seizure, then assault causing bodily harm, and then robbery.
[15] At this point Defence counsel objected to my discussing modes of participation which I considered arose from the evidence but which Crown counsel had not anticipated pursuing. Defence counsel seemed unaware of the mandate in cases such as R. v. Pickton, 2010 SCC 32, [2010] 2 S.C.R. 198 to the effect that the trial judge is obliged to charge on any mode of participation that has an air of reality from the evidence presented at trial. I considered it my duty to raise these issues at the earliest possible opportunity to ensure trial fairness and to ensure that I would be able to prepare my charge in a timely manner. At this stage, the Crown had closed its case and Defence counsel had not yet been put to an election.
[16] It was at this point that Defence counsel brought his motion for a mistrial.
[17] I note that, in the discussion that followed regarding the modes of participation that I needed to include in the charge, I challenged the applicability of “common unlawful purpose” to the counts of robbery, a mode of participation that the Crown wanted to advance. Defence counsel did not object to that mode being advanced. In the end, Crown counsel was unable to persuade me that this mode of participation had an air of reality in the context of the evidence, or lack of evidence, in the case. It was not included in the charge. The accused was found not guilty of robbery on the basis of the modes of participation regarding robbery that were included in the charge.
Analysis
[18] My analysis will be brief.
[19] The role of a trial judge presiding over a criminal jury trial is a delicate, challenging, and exhausting one. She must deal with issues as they arise in an expeditious, but well-reasoned manner, in accordance with the law as she understands it, and in keeping with the highest standards of fairness. Much is at stake for an accused person. Any argument of his counsel that is not accepted by the judge must feel like an affront. That, however, under the law, does not equate with a reasonable apprehension of bias.
[20] It is not an indicator of bias when a judge advises counsel that she is having difficulty understanding or accepting arguments being advanced by counsel. Doing so provides counsel with the opportunity to rephrase or refine submissions or to consider another way of persuading the judge of the merits of that counsel’s position. Similarly, it is not an indicator of bias when a judge advises counsel at a pre-charge conference in a criminal jury trial as to what the judge is struggling with in terms of identifying everything that the judge must include in the charge. Nor is it an indicator of bias for the trial judge to express an opinion as to what modes of participation are raised by the evidence, and what modes do not carry an air of reality. In fact, it is extremely important for the fairness of the trial that these topics be canvassed openly at the earliest opportunity.
[21] There is a presumption of impartiality of the judiciary. It would take much more than what transpired in this trial for a reasonable, well-informed, and thoughtful person, fully cognizant of the complexities inherent in a criminal jury trial, to conclude that I was not approaching the case with an open mind fair to all parties.
Aitken J.
Released: March 6, 2014
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Applicant
– and –
KHAMEA LOUANGRATH
Respondent
RULING #3: APPLICATION FOR A MISTRIAL
Aitken J.
Released: March 6, 2014