ONTARIO SUPERIOR COURT OF JUSTICE

OTTAWA COURT FILE NO.: 12-G1037
DATE: 2014/09/05

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN
Applicant

– and –

Ashley Windebank
Respondent

– and –

Mohamed Mohamed    Co-Accused Respondent

James Bocking, for the Provincial Crown and Melody Foerster, for the Federal Crown for the Applicant

Natasha J. Calvinho and David Gault, for the Respondent
Neil Weinstein, for the Co-Accused Respondent

HEARD: September 4, 2014

decision on application under S. 657.3 OF THE CRIMINAL CODE

PHILLIPS J.

[1] This is an application under section 657.3 of the Criminal Code to have a Charter ruling applied to an upcoming second trial notwithstanding that the first trial wherein the ruling was made ended in a mistrial after the trial judge found a reasonable apprehension of bias arising out of his relationship with a key police witness.

[2] Ashley Windebank and Mohamed Mohamed are charged with possession for the purpose of trafficking as well as possession of a firearm. A trial of the matter was commenced before the Honourable Mr. Justice Kane on October 23, 2013. The trial began with an application brought by both accused persons to exclude evidence seized from their residence pursuant to the combined effect of sections 8 and 24(2) of the Charter. In a decision dated November 14, 2013, Kane J. dismissed that application (R. v. Windebank 2013 ONSC 6840). The taking of evidence on the trial proper commenced on November 26, 2013. After the first witness testified, and made specific mention of the Investigating Officer, Kane J. indicated that he knew the Investigating Officer in a personal capacity. His Honour explained that he and the Investigating Officer are neighbours who interact regularly in a friendly way. Mr. Mohamed brought an application for Kane J. to recuse himself on the basis that there was the potential for a reasonable apprehension of bias. In the result, Kane J. agreed that the public could reasonably perceive bias on his part given his relationship with the important Crown witness and declared a mistrial. As he put it, the social pressure all of us feel to get along with our neighbors might be perceived as subconsciously compromising his ability to impartially decide the case.

[3] I note that no one is suggesting that Kane J. was actually possessed of any bias. Rather, the problem was whether the public (including, of course, the accused persons) could reasonably perceive unconscious bias on his part given the circumstances. As well, all agree that Kane J. revealed his relationship with the Investigating Officer as soon as he realized that man’s connection to the case. The problem is, however, that the Investigating Officer’s name features prominently throughout the surveillance reports and confidential informant handling reports which formed the crucial parts of the evidence on the section 8 application. The concern is that while the Investigating Officer’s name and involvement may have escaped Kane J.’s conscious notice as he reviewed the application materials prior to deciding the Charter issue, that information was nonetheless before him and could have affected his judgment in an unconscious way.

[4] Section 653.1 of the Criminal Code is an amendment which came into force in August 2011 following passage of Bill C-2, the Fair and Efficient Criminal Trials Act, S.C. 2011, c.16. The section reads as follows:

In the case of mistrial, unless the court is satisfied that it would not be in the interests of justice, rulings relating to the disclosure or admissibility of evidence or the Canadian Charter of Rights and Freedoms that were made during the trial are binding on the parties in any new trial if the rulings are made - or could have been made - before the stage at which the evidence on the merits is presented.

[5] This amendment was made pursuant to the recommendations of the November 2008 Report of the Review of Large and Complex Criminal Code Procedures (the “Lesage-Code Report”). It is evidently meant as an attempt to minimize the consequences of a mistrial on court resources. If the reason for the mistrial is independent of a ruling, the ruling should not go down with the trial. Re-litigation of issues already fairly decided is to be avoided.

[6] In my view, potential public perception of bias, even unconscious bias, on the part of a trial judge strikes to the heart of the reputation of the administration of justice. As the Supreme Court of Canada made clear in R. v. R.D.S. 1997 324 (SCC), [1997] 3 S.C.R. 484 at paragraphs 91 and 94:

A system of justice, if it is to have the respect and confidence of its society, must ensure that trials are fair and that they appear to be fair to the informed and reasonable observer. This is a fundamental goal of the justice system in any free and democratic society.

Fairness and impartiality must be both subjectively present and objectively demonstrated to the informed and reasonable observer. If the words or actions of the presiding judge give rise to a reasonable apprehension of bias to the informed and reasonable observer, this will render the trial unfair.

[7] I find that the concept of the “interests of justice” as contained in section 653.1 encompasses concerns relating to the integrity of the criminal process, which include the right to be tried only by an impartial judge. In Valente v. The Queen 1985 25 (SCC), [1985] 2 S.C.R. 673 at p.685, Le Dain J. held that the concept of impartiality describes “a state of mind or attitude of the tribunal in relation to the issues and the parties in a particular case”. He added that “[t]he word ‘impartial’… connotes absence of bias, actual or perceived”.

[8] While there is no actual bias here, there is a basis on the record for the potential for a perception of one, if only in the unconscious sense. I find that Kane J.’s decision to declare a mistrial should have retroactive application on all that he decided while possessed of the information about his neighbour’s integral involvement in the case.

[9] To re-litigate the Charter application would take approximately two days. Obviously, all relevant materials and written submissions have already been marshaled by the parties.

[10] I conclude that it would be in the best interests of the administration of justice for the Charter application to be reheard. There is simply too great of a risk that the public will perceive that the ruling made on the Charter dispute was tainted by unconscious bias on the part of the trial judge. While Kane J. declared and acted upon the apprehension of bias once he became conscious of it, there is untenable risk that it could be perceived to have existed in an unconscious way before then.

[11] The application under s.653.1 is denied.

The Honourable Justice Kevin Phillips

Released: September 5, 2014

OTTAWA COURT FILE NO.: 12-G1037

DATE: 2014/09/05

ONTARIO
SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Applicant

– and –

Ashley Windebank

Respondent

– and –

Mohamed Mohamed    Co-Accused Respondent

DECISION ON APPLICATION UNDER S. 657.3 OF THE CRIMINAL CODE

PHILLIPS J.

Released: September 5, 2014