CITATION: R. v. Brennan and Headley, 2015 ONSC 2051

COURT FILE NO.: CRIMJ(F) 566/13

DATE: 2015-04-01

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Carrie Vanden Broek, for the Crown

• and -

SPENCER BRENNAN and MARK HEADLEY

Ilan Neuman, for Mr. Brennan

Edmond Brown, for Mr. Headley

HEARD: March 11, 2015

RECUSAL RULING

Lemon J.

The Issue

1Mr. Brennan asks that I recuse myself from his trial. After hearing from Mr. Brennan’s counsel and the Crown, I dismissed the motion with written reasons to follow. These are those reasons.

Background

2Mr. Hedley and Mr. Brennan are both charged with sexual assault. They elected to be tried by judge and jury.

3Evidence and closing addresses of counsel had been completed on March 10, 2015. On March 11, this motion was brought as we were to review my draft charge. The complaint arises from comments that I had made to Mr. Brennan’s counsel, Mr. Neuman, just prior to the commencement of closing addresses the morning before. No notice of motion was filed. No affidavit in support was provided. No transcript was prepared. Mr. Neuman advised that he had considered the topic the evening before and that morning.

4As a result of pre-trial motions, I had made a ruling with respect to prior sexual conduct between the complainant and her boyfriend. Section 276 of the Criminal Code of Canada stipulate that no evidence shall be adduced of any sexual activity, other than the activity which is the subject other charge, between the complainant and any other person unless the presiding judge determines it to be admissible. I had given an oral decision on February 20, 2015. At that time, with respect to this issue, I said:

I am satisfied that the evidence relating to sexual activity between the complainant and her boyfriend on May 14, 2011 is relevant and may be adduced by the defense either by calling witnesses or by cross-examination of Crown witnesses. Further, the evidence of sexual activity that occurred between both accused and the complainant in April 2014 may also be adduced by the defense.

In both cases, I do not see that details of the events will be necessary and it seems that they should be kept to a minimum. I do not agree with Mr. Neuman that there is a need to canvass whether the sexual activity with the complainant and her boyfriend was protected or unprotected. Without hearing the evidence of the complainant and hearing the specific questions to be asked, I am unable to give greater guidance. Again, if the Crown and defense require further clarification as the trial proceeds, I am prepared to consider that. Written reasons for this ruling will follow.

5On March 2, I provided written reasons. I ruled that :

The evidence related to the sexual conduct between the complainant and her boyfriend is admissible. The conduct is contrary to the common sense and experience that jurors are asked to apply. The complainant and her boyfriend may have an explanation for this behaviour. Rational people do apparently irrational things for rational reasons. This will be up to the jury to decide. It could be conduct that affects the credibility of the complainant and is important for the accused to make full answer and defence. It is reasonable to think that it will assist the jury in making their determination.

I appreciate that both the complainant and her boyfriend may not wish to speak about their private matters in a public courtroom and that could discourage others from reporting such allegations. There may be some prejudice to the complainant’s right to privacy. However, given the nature of the allegations in dispute, this event will not appreciably add to the complainant’s discomfort.

I do not presently see that much detail about the incident is necessary. Mr. Brown agrees but Mr. Neuman wishes to examine on whether there was protected or unprotected sexual intercourse. I do not see the relevance of that fact to the real issues between the parties. The relevant fact is that sexual conduct occurred at that time. The details of the acts are not significantly probative to outweigh the prejudice to the complainant’s dignity and rights of privacy.

6I had made a very particular ruling with respect to a very particular event on a particular day – May 14, 2011. There were no requests for clarification; apparently the law and facts were clear to all counsel.

7On Monday March 2, 2015, Mr. Neuman cross-examined the complainant as follows:

Q. Next morning – you’ve told us the next morning all about the events the next morning and you told us all about how you got up and what happened and it was a very traumatic experience and a difficult experience, right? The next morning after you left Spencer’s house?

A. Yes.

Q. And you’ve told us that you at one point, before you went to the hospital, made love with Jamie, is that right?

A. Yes, that’s correct.

Q. Yeah. And I’m going to suggest to you that on June 2 you were being interviewed by Officer Ahrens and when he asked you when you had last had sex you told him it was two days before the incident. Do you recall that?

A. I don’t recall that, no.

Q. Do you say that you didn’t say that?

A. I don’t remember saying that, no.

Q. Okay. You have no recall of that?

A. I don’t recall that, no.

Q. You were with Jamie, together with Jamie and you were being interviewed by Officer Ahrens and you disclosed to him that you had sex two days prior, which led to Officer Ahrens asking for a DNA sample from Jamie?

A. Okay. That sounds – yes. That’s reminds me.

Q. Is that what you told Officer Ahrens?

A. The DNA sample, something like that recalls...

Q. And did you tell Officer Ahrens that you’d had sex two days prior with Jamie?

A. I can’t remember.

Q. You might have?

A. I don’t know.

Q. You can’t answer that now?

A. I’m not sure, no.

Q. Okay. [Emphasis mine]

8The Crown did not object to this line of questioning. Although the reference to sexual conduct two days before was in breach of my ruling, the answers seemed innocuous and I mistakenly made no comment.

9On March 6, Mr. Neuman called investigating officer Stephen Ahrens as part of the defence case. The questions and answers relating to this issue were:

Q. Sergeant Ahrens, you were the main investigator in this matter?

A. That’s correct.

Q. And I think we’ve seen a video recording of you?

A. That’s correct.

Q. All right. And you met with, on various occasions with Jessica Ballard and her friend Jamie Boaden?

A. Yes, I did.

Q. Okay. Do you have any notes of this?

A. I do.

Q. Of the occurrences and of your activities?

A. I do.

Q. Would it make it easier if I were going to quote specific areas, would it be easier for you if you had your notes to refresh your memory? Would you prefer to use them?

A. Yes, I would.

Q. And your notes, when were they made in relation to the events that occurred?

MS. VANDEN BROEK: None of this is objected to, Your Honour.

THE COURT: Thank you.

MR. NEUMAN: Thank you. With Your Honour’s permission. Do you have your notebook with you?

A. No, I don’t. I don’t know which date...

Q. Okay. I’m going to be looking particularly at the date of June 2 – it says 2010 but I’m going to make a guess that it’s actually 2011. So, if you’d look for that notebook if you wouldn’t mind.

A. Now, you had said June...

Q. It says at the top of the first page that I’ve got, and there’s a number of pages, which I’ve managed to number, and it says June 2, 2000 and – Thursday, June 2, 2010. I suspect that is June 2, 2011, as it seems to do with – have to do with this case and that would be...

A. Okay.

Q. Perhaps if I can show – with Your Honour’s permission if my friend doesn’t mind...

MS. VANDEN BROEK: Not at all.

MR. NEUMAN: Q. If I could just show Officer Ahrens, it will save a little time that way.

THE COURT: Go ahead.

A. Yes, that’s 2011.

MR. NEUMAN: Q. I sort of assumed. Now, what I’m looking for in particular, I don’t have either a page number or date, so I can’t tell you where to find this one. I’ve got it as 1, 2, 3, 4, 5, the 6th page after that one that says June 2.

A. I think this is it right here.

Q. Okay. You’ve got your note there for that date and particularly at 10:30 in the evening?

A. That’s correct. And that is on Monday, June 6, 2011.

Q. Okay. Well, unfortunately because some of the pages I have I wasn’t sure of the date.

A. All right.

Q. Do you know where you were at the time? Do your notes help you determine that?

A. Yes. At that time I was working at Special Victims Unit, which is at 180 Derry Road in Mississauga.

Q. Okay. So, you were in the office at that time?

A. Yes.

Q. And at 10:30 p.m. you have a note about – and it says Victim – does victim mean Jessica Ballard?

A. That’s correct.

Q. And BF, does that mean Jamie Boaden?

A. Yes, it’s boyfriend, yes.

Q. Boyfriend, right. And they disclose something to you at the time. Can you tell us what they disclose to you?

A. Yes. At – they disclose that they had sex two days prior.

Q. Okay.

A. And by two days prior I mean two days prior to the incident that’s being investigated.

Q. All right. And now, of course in your capacity as an investigator you weren’t investigating their personal lives. What would have been the point of you raising that issue?

A. The point of me raising that is for DNA. [Emphasis mine]

10And with that, again, the sexual conduct of two days prior was before the jury without an opportunity for the Crown to object or for me to make a ruling on the evidence. No warning was given by Mr. Neuman at any time. He did not mention this incident in the pre-trial motions.

11The Crown attempted to deal with the evidence that was now before the jury:

Q. Officer, regarding that particular piece of disclosure, do you know what question you asked?

A. No, I don’t. I don’t know if I asked if they had sexual relations or – prior, you know, a week prior or within the week prior of the incident. But that is my concern, prior to the incident and DNA being left by her boyfriend.

Q. Okay. Thank you.

12The evidence completed on March 9 and, with some time left in the day, I asked for some assistance as to what should or should not be in my charge. In particular, I asked Mr. Neuman what relevance Officer Ahrens’s evidence might have since I was not then planning to review it for the jury. He submitted that it was important evidence relating to the credibility of the complainant. I raised my concerns with respect to the issue of sexual activity. Mr. Neuman assured me that he had authority for what he proposed. I asked him to bring it with him the next day.

13On March 10, 2015, Mr. Neuman and I discussed how this evidence could assist with credibility. The transcript picks up from there:

THE COURT: Okay. Let’s go – I have some real doubts but I am at least at this point prepared to call on the Crown on that point. Now, but you still need to go back to how this isn’t sexual conduct. Go ahead, I’ll not interrupt you on that point.

MR. NEUMAN: It is only for the purpose of saying that the – that they clearly now, if they both say that they had sex more recently, that they said something inconsistent. I don’t care whether they in fact had sex two days before, it’s irrelevant. I’m not trying to prove it, nor am I trying to use any of anything that would even remotely arise out of s.276 to look at past conduct. I’m only looking at the statement and that’s exactly the issue that’s addressed in Green. It isn’t the conduct, it’s the statement. If the statement is made it goes to credibility. If the statement goes to credibility it’s not conduct, it’s only a statement. We have, in my submission, and I think I can reasonably make the submission to the jury, not that they had sex two days before because I couldn’t care less, nor could the jury...

THE COURT: And you’re going to tell that to the jury?

MR. NEUMAN: Absolutely. Absolutely. That is not the issue. It’s the same issue that Your Honour looked at when you determined the initial s.276 application.

THE COURT: But you don’t want to go that way, Mr. Neuman...

MR. NEUMAN: No, but I...

THE COURT: ...because if it’s the same issue, it should have been an application.

MR. NEUMAN: No, no. I understand that. No, no, but it’s the same issue when it’s the surprise. And in my mind it’s the surprise, I think, that’s exhibited in the minds of the individuals that are talking to the police officer that are not being candid, that they know that that will make the report less likely.

THE COURT: The jury know that because the evidence of the sex between the two events that is allowed in doesn’t come from Mr. Boaden until June of 2000 and, is it 15?

MR. NEUMAN: No. February 2015.

THE COURT: February 2015.

MR. NEUMAN: Yes. No, I know that but it seems to me this bolsters it because they may have been aware of it at the time and they may have been less than candid. And the jury, in my mind, can look at that. They can look at their candid report to determine whether or not they are – they are colouring the case they’re presenting.

THE COURT: Okay.

MR. NEUMAN: That’s all.

14I then called on Mr. Brown on behalf of Mr. Headley and the Crown along with Mr. Neuman in reply.

15I then made my ruling in favour of Mr. Neuman and Mr. Brennan. The words of concern have been highlighted:

THE COURT: Green has no applicability to what we’re talking about here. In my view, in reviewing my notes on how this problem came up because to some extent the Crown didn’t object and it’s her fault, but more importantly it’s my fault. The way this came about is that the complainant was asked about this sexual activity as the last question late in the day. It then came up again by, on defence counsel taking the officer to a particular point in his notes and saying what does that say? So, neither the Crown nor I were ready to be told about prior sexual activity. And in my mind defence counsel, proper professional, ethical defence counsel would have raised that issue before it came up to get a ruling. But the evidence is before the jury. I don’t think that I can tell counsel how to do their address on the evidence that is before the jury. My own view is that the argument that Mr. Neuman wants to put is weak, if not counter-productive, but it’s not me that makes the decision, it’s the jury.

It would seem to me that in the standard charge as it’s presently drafted there is a number of questions for the jury to consider, and one of those is the standard instruction that they have to decide whether there has been a prior inconsistent statement made at all. And I think this will be a prime example for them to deal with. And if Mr. Neuman goes awry in his address that can be corrected in the charge.

But one, defence was entirely inappropriate and I intend to treat you throughout my career, that that’s your level of integrity and I will be very, very careful with what you say and do. You may have done that intentionally, you may not. I do not know. But to me that is simply the wrong way to practice. But the evidence is before the court, defence can do with it what they will. I think we’re ready to go.

Positions of the parties

16Mr. Neuman moved for a mistrial but I am sure that what he meant was that I should recuse myself and that would lead to a mistrial. He submitted that my comment that his behaviour was unethical would lead an impartial observer to believe that there was an appearance of bias. He denied that he transgressed or intended to transgress my ruling. He submits that the word “unethical” suggests a deliberate flaunting of the rules of practice. My comment that I would carry that view forward would cause an impartial observer to wonder whether the appearance of independence from outside comments would be marred. He is careful to not say that there is bias, only an appearance of bias because of a commitment to a particular view of counsel.

17Mr. Brown, on behalf of Mr. Headley, declined to comment.

18In response, the Crown pointed out that the comments were in the absence of the jury. Further, there is nothing to suggest that I have been unfair to the accused and that, at this stage of the trial, the charge review, there is nothing that appears to be unbalanced in my charge to indicate any unfairness to Mr. Brennan or harm his rights to a fair trial. Although Mr. Neuman may be offended, at this point, there has been no consequence to Mr. Brennan; the motion is premature.

Legal Authorities

19In McGraw v. Samra, 2008 ONCJ 465, Katarynych J. succinctly set out the principles to be applied as follows:

[18] An allegation of judicial bias is one that counsel should make “only after careful and anxious reflection”. A finding of real or perceived bias is serious business. It calls into question an element of judicial integrity — not simply the personal integrity of the judge, but the integrity of the entire administration of justice

[19] When considering the issue of bias in regard to a judge, there is a starting presumption of impartiality; specifically, that judges in their exercise of any judicial duty, will be faithful to that part of their oath of office that requires them to act impartially, which in its essence is a state of mind in which the judge is disinterested in the outcome and is open to persuasion by the evidence and submissions.

[20] Bias, on the other hand, denotes a state of mind or attitude that is in some way predisposed to a particular result or that is closed to a particular issue.

[21] The criteria for determining when an apprehension of bias arises are those first enunciated in Committee for Justice and Liberty v. National Energy Board, 1976 2 (SCC), [1978] 1 S.C.R. 369, at page 394 [S.C.R.]:

. . . 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. . . . the 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 judge], whether consciously or unconsciously, would not decide fairly?

[22] It is a test that has been consistently followed in Canada for more than 20 years.

[23] There is a two-fold objective element to this test:

the person considering the alleged bias must be reasonable; and

the apprehension of the bias itself must also be reasonable in the circumstances of the case.

[24] Regardless of the precise words used to describe the test, the object of the different formulations is to emphasize that the threshold for a finding of real or perceived bias is high. The grounds advanced for this apprehension must be substantial. The test is not related to the “very sensitive or scrupulous conscience”.

[25] The onus of demonstrating real or perceived bias lies with the person who is alleging its existence.

[26] The belief of the applicant and his counsel that the applicant would not receive a fair hearing before a particular judge is not the standard against which apprehension of bias is measured. The apprehension of bias must be considered objectively through the eyes of a fully informed, reasonable person who is reacting reasonably in the circumstances.

[27] If the applicant is to succeed, the evidence in the motion must rise above the imaginary or conjectural sentiments of the applicant and demonstrate real likelihood or probability of bias.

[28] The applicant’s task is to show wrongful or inappropriate declarations showing a state of mind that sways judgment — a predisposition that is so great that the judge is not open to persuasion upon presentation of new evidence or new arguments.

[29] The presumption of judicial impartiality will only be displaced with cogent evidence that something a judge has done gives rise to actual bias or a reasonable apprehension of bias — evidence that would cause a reasonable person who understands the contextual issues and the law governing the case to believe that the particular judge would not entertain the various points of view with an open mind.

[30] The specific complaints raised by the applicant in support of his recusal motion are to be construed in light of the entire proceedings. Regard must be had to the cumulative effect of all of the relevant factors.

[31] Judicial officers should not accede too readily to allegations of actual or appearance of bias. Although it is important that justice be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to the applicant’s suggestions, encourage parties to believe that, by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour.

[references omitted]

20I agree with the comments of Southin J.A In Middlekamp v. Fraser Valley Real Estate Board, [1993] 42 A.C.W.S. (3d) 664:

[10] As to the question of bias, Mr. Rankin pointed to in his opening and has reiterated in his reply many remarks which have been made by the learned trial judge over the course of these 60 days which some might think were rather sharper than they ought to have been. That is a matter of perhaps one would say taste. Some judges by nature are silent; some of us talk perhaps more than we should. Whether some one or all of these remarks might better not have been said I do not propose to discuss. Every experienced counsel has from time to time felt herself unfairly treated by receiving a lashing from the sharp edge of the tongue of a judge. I remember the feeling myself.

[11] As I believe the Chief Justice of this Court has said on more than one occasion, a trial is not a tea party. But bias does not mean that the judge is less than unfailingly polite or less than unfailingly considerate. Bias means a partiality to one side of the cause or the other. It does not mean an opinion as to the case founded on the evidence nor does it mean a partiality or preference or even a displayed special respect for one counsel or another, nor does it mean an obvious lack of respect for another counsel, if that counsel displays in the judge's mind a lack of professionalism.

[12] The relationship between bench and bar is sometimes difficult. If the system is to work, there must be restraint on both sides and also an understanding by the bar of the judicial process. The judges rarely come to anything with a closed mind.

Analysis

21While Mr. Neuman did not provide an appropriate record, I can understand the reasons that he did not want to hold up the trial to obtain a transcript and prepare a proper record. That being said, without a proper record it is unlikely that the appropriate “careful and anxious consideration” has been carried out. There was no evidence to support this motion. Be that as it may, in order to do justice to this serious issue, I ordered the transcript of the relevant portions of the discussion.

22The first response is that if counsel behaves inappropriately, the court should respond to that behaviour. I should have done so sooner. Mr. Neuman was steadfast in his view that the topic was appropriate because it dealt with the complainant’s credibility. While I disagree with him on that point, he misses the real issue. Even if he is correct that the probative value of that evidence makes it admissible, the necessary application has to be brought in advance. Counsel does not determine the admissibility of prior sexual conduct; the judge hearing the application does. Without the successful application, it is inadmissible for any purpose.

23Even if Mr. Neuman is correct, asking the question as he did to the police officer, he was being unfair to the Crown and the trial judge by having the evidence before the jury before a ruling could be obtained. I do not know if Mr. Neuman did that intentionally or not but I do know that, either way, his approach to evidence will require careful scrutiny by this trial judge in the future.

24Mr. Neuman’s conduct is troubling but I made no finding whether it was intentional or not. It is clear, from what occurred in this trial that I will need to pay greater attention to his advocacy. The fact that this evidence came before the jury is an error of both of ours. I can ask better of both of us without imperilling the appearance of justice in Mr. Brennan’s case.

25Even if I am wrong in my view of the law and Mr. Neuman’s conduct, the comments do not amount to such that a recusal is appropriate.

26It must be remembered that the comments were made by me in the midst of two favourable rulings for the defence. In that context, it is difficult to show a predisposition to a particular result unfavourable to Mr. Brennan. Nothing in the draft charge was relied upon to support the motion.

27The applicant’s task is to show wrongful or inappropriate declarations showing a state of mind that sways judgment — a predisposition that is so great that the judge is not open to persuasion upon presentation of new evidence or new arguments. But here there is nothing to show that my judgement has been affected by Mr. Neuman’s conduct.

28While no counsel would like to have my words used in their direction, it would take a “very sensitive or scrupulous conscience” to think that rebounded onto the accused.

29For those reasons, the motion was dismissed.

Lemon J.