COURT FILE AND PARTIES

COURT FILE NO.: 12-SA5116

DATE: 2014-03-19

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. C.D.H

BEFORE: Justice Timothy Ray

COUNSEL:
Alex Smith, Counsel, for the Crown

Celine Dostaler, Counsel, for the defendant

HEARD: March 19, 2014

ENDORSEMENT

[1] The Crown brings this application for an order for a mistrial with respect to the outstanding charges (assault, fail to comply –two counts) awaiting sentence. The Crown submits that my conversation with the officer-in-charge of the case in chambers, gives rise to a reasonable apprehension of bias by me.

[2] The defendant filed no material but submits that a mistrial is unnecessary on the ground that the detective’s typed statement was not contemporaneous with the conversation with me. Counsel contends that no bias on my part was evident. She contends that alternatively, recusal might be appropriate.

[3] The only information I had at the time I gave my decision was the evidence heard in court and reviewed in my decision. I finished my written decision, left the office, and while at home during the evening, went online out of curiosity about the match.com website which had been mentioned in evidence. After signing in using an anonymous user name, I was faced with a great number of very personal questions. I then logged out. I did not conduct any research about the complainant, and no information about the complainant was made available to me.

[4] My conversation with Detective Lehman about the website was based on the type and extent of the questions I had found during my brief ‘log in’ the previous evening, after I had written my decision; and that any person using the website is required to disclose a great deal of personal information. My point was that if this type of information could be accessed, it might be useful as a potential investigative tool and for counsel in a criminal trial. I repeat, I had no information concerning the complainant, and had not attempted to obtain any such information.

[5] Notwithstanding what I have said, my off the record conversation with Detective Lehman in the absence of counsel was clearly an error in judgement on my part and is the basis of the Crown’s argument of perceived apprehension of bias on my part. The Crown made it clear that that it is not their case that I am or was biased, but that there is an appearance of bias.

[6] While I am functus officio with respect to those counts on which I entered an acquittal, I am not functus with respect to the charges on which I entered guilty verdicts until I have imposed sentence. Where there are exceptional circumstances and where clearly called for, a trial judge may vacate the adjudication of guilt at any time before a sentence is imposed (R v Griffiths, 2013 ONCA 510 : R v Lessard, (1977, 1976 1417 (ON CA), 30 C.C.C. (2nd) 70)

[7] While I feel confident I can disabuse myself of any out of court evidence concerning Mr. C.D.H that I received during the conversation with Detective Lehman, the appearance of fairness may very well have been affected. I am persuaded that my conversation with Detective Lehman about the evidence in this case after I gave my decision taints the perceived fairness of the process, and is an exceptional circumstance requiring a mistrial.

[8] Similarly, I am concerned that the tainting of the perceived fairness of the process cannot be cured by my recusal in favour of another judge to complete the penalty phase. As a consequence, I am not prepared to exercise my discretion in favour of recusing myself pursuant to s. 669.2 CCC.

[9] Accordingly, the Crown’s application is granted, a mistrial is ordered, and the findings of guilt made by me on December 18, 2013 are vacated. This proceeding is adjourned to the next assignment court, April 4, 2014.

Justice Timothy Ray

Date: March 19, 2014