ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty The Queen,
John McInnes, for the Appellant
Appellant
- and -
Brian Bellefeuille,
Robert Warren, Q.C., for the Respondent
Respondent
HEARD: October 20, 2014, at Thunder Bay, Ontario
Platana J.
Reasons For Judgment On Summary Conviction Appeal
1The Crown appeals from the decision of the trial judge dismissing a charge of assault causing bodily harm against the Respondent. For the reasons herein, this appeal is allowed.
Overview
2On February 11, 2012, Brian Bellefeuille, an officer with the Ontario Provincial Police (“OPP”), arrested Gary Megan outside a bar in Greenstone pursuant to the Liquor License Act. He was handcuffed, placed in a police cruiser, and taken to the Greenstone detachment of the OPP. Megan was led into a cell, which was equipped with a surveillance camera. The Respondent was behind him, holding him by the back of his jacket. While Megan was still handcuffed behind his back, Megan, who appeared angry, seemed to be turning his head toward the Respondent and saying something. The Respondent is then seen on camera initiating movements which resulted in Megan being thrown to the floor of the cell, a movement the officer referred to as “grounding”. Megan suffered significant injuries as a result and was taken to hospital.
3At trial, the Respondent testified that he had originally approached Megan outside the bar in a friendly fashion, and Megan had told him to “fuck off”. Forming the impression that Megan was intoxicated, Bellefeuille stated that he was concerned about how Megan would get home safely. When asked where he lived, Megan named a place the officer knew to be some 80 kilometres away. Megan said he was walking home. The temperature was -20C. The Respondent testified that he was concerned for Megan’s risk of hypothermia and arrested him for fear he would die if he attempted to walk home.
4The Respondent testified that he was aware that Megan had a history of violence when intoxicated, and that after he had been arrested, Megan resisted arrest more or less continuously until led into the cell. He stated that when Megan turned his head toward him in the cell, he perceived an assault, and “grounded” Megan using force justified by s. 25 of the Criminal Code.
5At trial, the Crown’s theory was that s. 25 was not triggered, as there were no requisite grounds for a Liquor License Act arrest. Even if s. 25 had been triggered, the Crown argued that the force used in “grounding” Megan in the manner used was not necessary force within the meaning of s. 25, but was excessive force.
6Before the Crown closed its case the trial judge expressed skepticism about the Crown’s position in relation to the arrest. At the close of the Crown’s case the defence applied for a directed verdict. The trial judge dismissed that application, but in the course of doing so he explicitly ruled “…that the arrest was lawful for reasons that seem quite obvious to me under the circumstances”. He had heard no submissions from the Crown on the issue. When the Crown inquired if this ruling foreclosed him challenging the lawfulness of the arrest, the trial judge replied that his ruling was for purposes of the motion only and that the Crown could still argue the point later “especially for the Court of Appeal”. As the case continued the trial judge made several more comments concerning the lawfulness of the arrest. Ultimately he found the arrest was lawful and acquitted the Respondent on the basis that grounding Megan was justified under s. 25.
Appellant’s Position
7The Crown hereby appeals on the following grounds:
(1) the trial judge prejudged the lawfulness of the arrest and limited the Crown’s cross-examination of the Respondent in relation to that issue, giving rise to a reasonable apprehension of bias and thus occasioning a miscarriage of justice;
(2) the trial judge erred in concluding that the Respondent lawfully arrested Gary Megan pursuant to s. 32.5(5) of the Liquor License Act;
(3) the trial judge erred in finding that the Crown was bound by the testimony of its own witnesses;
(4) the trial judge misapprehended and/or failed to give effect to the evidence pertaining to the “grounding” of Gary Megan in the cell at the Greenstone OPP detachment and otherwise erred in his assessment of whether that use of force could be justified under s. 25 of the Criminal Code; and,
(5) the trial judge erred in concluding that the Respondent did not put his character into issue.
8The Appellant acknowledged that the injuries suffered to the extent of cuts to the face are sufficient to constitute bodily harm.
9The Appellant submits that the essential issue on appeal is the reasonable apprehension of bias. Prejudgment is one aspect of that. The Crown argues that the various grounds of appeal, when added to that, constitute this as an unsatisfactory trial. The Crown frames the overall issue as being – would a reasonable person sitting in the courtroom during this trial conclude that the case was tried by a judge with an open mind? In particular, did the trial judge make up his mind about the lawfulness of the arrest before he had heard all of the evidence, and before he had heard any submissions from the Crown on that point?
The Arrest
10The Appellant argues that the initial arrest outside the bar was not lawful. While Megan was intoxicated, he was not, the Crown argues, “falling down drunk”. The Crown argues that there was nothing in his condition that would have precluded him from getting back to his ex-wife’s house on Main Street.
11The Appellant argues that there is nothing in the evidence to suggest anything other than the arrest was in circumstances where the only ostensible reason was because the officer thought Mr. Megan was going to try and walk to his home some 80 kilometres away. The Crown’s position at trial was that testimony was essentially made up, and that it was unreasonable for the officer to have arrested Megan on those grounds.
12Counsel argues that the issue of the lawfulness of the arrest first arose during the second day of the trial in the testimony of Officer Karl Wilson. At the conclusion of that witness’ testimony, the trial judge, after hearing the evidence of concern for people being injured, or deceased, from hypothermia, tells the Crown to keep in mind a case the court had heard previously, and that the Crown must consider:
“what police officers have to do in considerations of minus to 25 degrees, somebody is intoxicated … and … their information is that they may walk back to a reserve that is an hour away by vehicle. so, I just want you to keep that in mind when you say that the arrest was improper … or would it have been improper to let him walk, attempt to walk and freeze to death on the side of the road. I just want you to consider that”.
13The Appellant argues that while there may be nothing wrong with the statement in itself, it became important when the defence later raised the request for a directed verdict, and one of the basis was whether there was an unlawful arrest. The defence further argued that there was insufficient evidence of bodily harm and sufficient evidence on which a jury could convict with respect to unjustified use of force.
14In the course of submission on the motion for a directed verdict, the Crown stated:
MR. CAPPELL: … And moving on Your Honour, I think there’s actually more I have to address due to my friend’s submissions yesterday, and I can advise Your Honour now that the Crown’s theory of liability is twofold. It’s gonna be my-it will be my position, again if we get to that stage, umm, that the officer should be convicted on the basis that there were no lawful grounds for arrest in the case. And if that’s the case, it there were no lawful grounds for arrest, any non-consensual application of force against Mr. Megan would be an assault in law.
THE COURT: Now, are we arguing beyond the motion now, ah … .
MR. CAPPELL: Well, I’m trying to–I’m just trying to establish, Your Honour, that there’s sufficient evidence-I’m not sure how much detail Your Honour needs, but I’m trying to establish that there’s sufficient evidence that Your Honour could convict on either of the two alternative theories.
THE COURT: Ah, no I … .
MR. CAPPELL: If Your Honour’s satisfied that … .
THE COURT: Yeah, I am.
MR. CAPPELL: If that’s the case then Your Honour, then I will shut up.
THE COURT: That’s impossible for any lawyer, Crown or defence, thank you. Or even the bench for that matter. Ah, thank you. And, ah, reply?
THE COURT: … It is only to consider the evidence of the-this court is only to consider the evidence on this motion, on this type of motion, whether or not there is sufficient evidence against the accused to answer the allegations, i.e. that the Crown has made out the prima facie case. Having indicated already that I will rule, and do rule, that the arrest was lawful for reasons that to me seem quite obvious under the circumstances, and which were reiterated yesterday.
15At the close of the day at the end of the ruling on the motion for the directed verdict, the Crown asks the court to clarify the ruling with respect to the arrest:
MR. CAPPELL: Your Honour, I think I just have to ask for the sale of the record. I think I understand the effect of Your Honour’s ruling with respect to whether or not the arrest was lawful. But just to be crystal clear is it Your Honour’s ruling that I am now foreclosed from making submissions with respect …
THE COURT: No.
MR. CAPPELL: … to the law-so, Your Honour I am foreclosed or I am to make submissions with respect to lawfulness of the arrest?
THE COURT: You’re not foreclosed. I only make that ruling with respect to the motion, within the context of the motion. And that’s the only ruling I should make. If you want to go ahead and argue that same motion, especially for the court of appeal, on the trial proper, fine with me.
16The Appellant argues that the trial judge indicated that the Crown did not need to argue the lawfulness of the arrest because there were sufficient grounds on the other two bases. The defence then went back to the issue of unlawful arrest, and the judge then stated that the issue need not be argued further “… because as far as I’m concerned, and I’ll tell you why, but the arrest was lawful.” The Appellant argues that the trial judge made this determination without having heard from the Crown in the context of the motion for a directed verdict.
17The Appellant’s position is that not having heard from the Crown, then telling the defence he need not argue the issue, then telling the Crown he could argue the issue later for the Court of Appeal, demonstrates a bias that the judge had already made up his mind as to the lawfulness of the arrest. The Appellant’s submission is that having a reasonable apprehension of bias is a jurisdictional error which cannot later be remedied.
18The Appellant argues that the error is compounded when later, in the cross-examination of the Respondent at trial, the Respondent is being asked about his grounds for the arrest and the defence objects, submitting that the judge has already ruled on that issue in the motion for the directed verdict.
19The following exchange then takes place:
MR. CAPPELL: Your Honour, I specifically asked you, at the time of the directed verdict motion, because I wanted to know was I going to be foreclosed, was I being foreclosed form pursuing this avenue. Your response was that I could revisit it if it gets to the point where I am making closing submissions. How am I expected to be able to revisit that argument if I can’t ask this officer if he was grounds for arrest? Which I would submit to the court is a critical issue in every case like this when a person is arrested and there is an allegation of assault … .
THE COURT: Did you argue that same way on the motion?
MR. CAPPELL: I started to, Your Honour, and Your Honour asked me, “Are you going into your general submissions now?” And I said that if Your Honour has been satisfied that, I’ve said, I’ve argued sufficiently for the purpose of this application, then I’ll stop. And you said that I had. I absolutely was going to go into that. And I think I made it abundantly clear throughout that the Crown’s position is that the arrest was not lawful and that that was something that I wanted to pursue.
THE COURT: Yeah. I did rule that the arrest was lawful. I did say that you could pursue it further. I didn’t want to restrict, because it was a motion, not the trial proper and that’s caught me. I’ve been looking for the magic bullet that gives your argument some credibility and so far, I haven’t seen it.
MR. CAPPELL: I can, we can, we can have a legal argument right now if Your Honour would like that. I am prepared to make submissions on the issue right now as to respect, with what does constitute grounds in a case like this.
THE COURT: You haven’t finished cross-examining the officer with respect to that incident. I am still looking for the evidence that is going to change my mind and so far, I haven’t seen it, so. From the motion, that is. But I’m, my mind is wide open to anything new and wonderful that you may have to offer.
20The Appellant argues that this indicates that the judge has already made up his mind, which shows that he is not approaching the evidence at this point in the trial with an open mind.
21Later in the cross-examination, when the Crown is attempting to question the Respondent about the issue of lawfulness of the arrest, the transcript notes:
MR. CAPPELL: I guess my point, Your Honour, that I’m trying to drive at is that it bore further investigation. It warranted further investigation which did not occur.
THE COURT: No, I don’t think so. It may warrant your investigation but not the court’s.
MR. CAPPELL: So I’m not allowed to ask him more questions about this?
THE COURT: That is exactly right.
MR. CAPPELL: Thank you.
22The Appellant argues that the position of the judge precluded the Crown from eliciting evidence bearing on the tests under the Liquor License Act, namely, if there were alternatives to the arrest.
23The Appellant notes that in closing argument, the Crown again referenced the unlawful arrest issue in the following exchange:
So, Your Honour, you’re now aware of at least one of the two alternative Crown’s reason of liability because it’s been discussed at great length and that is that Constable Bellefeuille is guilty of assault because he did not have lawful grounds to arrest Mr. Megan and therefore any application of force in that case would amount to an assault in law. Now, Your Honour already signalled fairly strongly and fairly early on that he does not accept that view of the case or the Crown’s view with respect to the lawfulness of the arrest. Your Honour had signalled this as early as the second day of evidence and it appeared that you reaffirmed that as early as a couple of days, or sorry, as recently as a couple of days ago during constable Bellefeuille’s cross-examination but given Your Honour’s further comments that I would not be precluded from making the unlawful arrest argument in closing submissions, I do intend to do so unless Your Honour tells me now that you don’t want to hear me on that point.
THE COURT: Oh, no. I mean, I’m sure the Court of appeal would be more than happy to have this court listen to your argument and not, certainly not cut you off.
24To demonstrate the expressed conclusion, the Appellant notes that when the Crown tried to cross-examine the Respondent about his grounds for the arrest, defence counsel noted:
Your Honour, you’ve made a ruling in relation to the lawfulness of the arrest. My friend has indicated to the court that he respects your ruling, wants to know if in submission he can re-argue the lawfulness of the arrest and that, as you’ve said, I think on a number of occasions, at his peril. We’re now going through this particular area where you’ve already made a ruling and my friend keeps going back to that particular lawfulness of the arrest and the grounds. I think the question has been answered on a number of occasions through a number of witnesses. I think this is not only repetitive but it’s a waste of the court’s time to go into this argument about whether the arrest was lawful or not when you’ve already made your ruling.
25Further, in closing submissions, defence counsel stated:
The Crown has indicated that on more than one occasion it takes issue with the lawfulness of the arrest, which Your Honour has made rulings on.
I am going into this particular area, I’m going to gloss over it, Your Honour, because my friend, if I understand his theory and what he wants to do on submissions, he’s going to suggest to you the arrest was unlawful. I know you’ve made a ruling on that but it is, as I understand, my friend is going to be going into that particular area.
26The Appellant submits that this makes it clear that even defence counsel considered that the judge had made the ruling on the lawfulness of the arrest before submissions had been made, and the trial completed.
27The Appellant summarizes this aspect of his argument by providing me with cases that say essentially that a judge cannot express conclusions about a material issue until the end of the case. Counsel submits that any kind of expressed conclusion about any issue that is contested between the parties, before hearing from both parties, gives rise to an apprehension of bias. In this case, he argues that by not permitting the Crown to fully explore the evidence as to possible alternatives to arrest, or the extent of Megan’s intoxication, the trial was unfair.
28Counsel cites R. v. M.L., [2005] O.J. No. 4451, where the Court of Appeal dealt with comments of a trial judge as to credibility of a witness made during his ruling on a voir dire. In ordering a new trial, the Court of Appeal said at paras. 22 and 23:
In this case the trial judge stated mid-trial that he believed what N. said in his video statement. Even though the trial judge included the caveat “viewing the videotape statement on its own” in one of the two comments quoted above, the appellant could reasonably apprehend that the trial judge disbelieved the testimony that N. had given as a witness at trial and, rather, believed that the appellant had beaten N. with a belt as N. had said in his video statement. These comments were made before the appellant testified and before his counsel made any submissions about the credibility of witnesses.
The trial judge’s comments were improper and irretrievably prejudiced the appearance of the fairness of the trial. A new trial is required.
29The Appellant draws an analogy to the decision in R. v. Camardi, [2008] O.J. No. 3562, where it held that judges should not make declarations about the credibility of witnesses during the presentation of evidence. Counsel asks me to consider the trial judge’s references to the Crown being able to “have a nice talk with the Court of Appeal” in the course of the trial, leads the reasonable observer with a strong impression that the trial judge had predetermined not only the lawfulness of the arrest, but the verdict itself.
The Liquor License Act
30The second ground of appeal relied on is that the trial judge misapplied s. 34(4) and (5) of the Liquor License Act. Counsel submits that the trial judge, in essence, failed to consider that being drunk, or intoxicated, is not sufficient to meet the requirement that to be subject to arrest, a person must be so drunk as to lack the capacity to take care of himself. The Appellant argues that the officer had no information which would justify the conclusion that Megan was intoxicated to the extent necessary for the arrest.
31Counsel also argues that the Respondent failed to make sufficient inquiries to determine where Megan was going. When Megan said he lived some 80 kilometres away and said that he was walking home, the Respondent testified that he then had grounds to arrest Megan for his own safety, without asking any further questions. The submission is that, prior to the arrest, the officer had no objectively reasonable basis to conclude that Megan’s intoxicated condition imperiled his safety. Counsel submits that the trial judge should have considered the Respondent’s version of the reasons for arrest critically, and he did not do so. Further, counsel argues, the judge had already ruled that the arrest was lawful before the Respondent even took the stand.
32In summary, counsel argues that the trial judge found that the arrest was lawful because the Respondent interpreted Megan’s statement as meaning he was going to walk the 80 kilometres to Aroland, and in the circumstances of the weather, the Respondent did not know what to do, so arrested him without considering the requirements of s. 34 of the Liquor License Act.
Testimony of Crown Witnesses
33The next ground for appeal is the trial judge’s error in the approach to the evidence of “Crown witnesses”. In the course of the trial, the Crown called Officer Wilson to verify certain aspects, but in submissions asked the judge not to accept all of the evidence of Wilson. In the course of his reasons, commenting on the Crown’s suggestion that the judge need not accept evidence of a police witness which is adverse to the Crown, the judge stated:
Once at the sally port of the detachment of the OPP Mr. Megan is removed from the cruiser and is described by the accused as alternatively angry and nice but as Mr. Megan is lead to the cells, … he is resisting more by turning his body away from the accused, … and pulling away. Constable Bellefeuille says Mr. Megan was “pressing hard and pulling away till we got to the cell door”; and this evidence is confirmed by the way by a crown witness Police constable Wilson. (underlined in reasons)
… Keeping in mind that most of the crowns witnesses are police officers these officers are still witnesses for the prosecution and are presented by the prosecution to the court to be believable.
34The Appellant argues that the fact that the trial judge made such comments, to the extent of underlining “Crown witness”, and by commenting that police officers “are presented by the prosecution to the court to be believable” impressed the legally mistaken view that the Crown is bound by adverse testimony from the mouths of its own witnesses, contrary to the decision in R. v. Walker, 1994 CanLII 8725 (ON CA), [1994] O.J. No. 827 (C.A.), where Finlayson J.A., stated at para. 31:
I do not accept that the Crown must vouch for the veracity of every statement uttered by every witness that it calls and does not impeach. There are many cases, such as the one on appeal, where the Crown is compelled to call disreputable persons as witnesses because they are the only possible witnesses to whatever it is that occurred. Crown counsel is entitled to invite the jury to be selective as to what part or parts of the evidence of any witness they should choose to believe. I do agree, however, with appellant’s counsel that Crown counsel is not entitled to call his own witness a liar and invite the jury to believe they very opposite of what the witness said.
35Finlayson J.A. went on to explain at para. 35:
In the case on appeal, however, Crown counsel not only repudiated his own witness but he invited the jury to accept, as factual, the converse of what the witness had said. This is an acceptable posture where there is affirmative evidence contradicting the witness in question. The jury can be invited to reject the evidence of witness A and accept the evidence of witness B.
36The Appellant submits that for the trial judge to have accepted all of the evidence of the police officer, just because he was a police officer, and not to consider that he did not have to accept all the evidence which the Crown suggested ought not to be accepted, is a fundamental error.
Section 25 of the Criminal Code
37The Appellant next argues that the judge erred in applying s. 25 of the Criminal Code. The Appellant argues that the force used was excessive, and not justified under s. 25. He notes that Megan was brought onto a hard concrete floor, with force, face-first, with his hands behind his back in handcuffs.
38Counsel references subsection 25(1) which justifies anyone “required or authorized by law to do anything in the administration or enforcement of law” in “using as much force as is necessary” to effect the lawfully authorized purpose provided “he acts on reasonable grounds”. The Crown’s position was that even if it was engaged by a lawful arrest, s. 25(1) did not justify the Respondent’s actions because “grounding” Gary Megan in the attendant circumstances was not “necessary” in the sense contemplated by s. 25(1). The trial judge acquitted the Respondent on the basis that the s. 25(1) justification was made out. In doing so, he misapprehended and/or failed to give effect to the applicable evidence.
39Counsel submits that legal constraints on a police officer’s use of force “are deeply rooted in our common law tradition and are enshrined in the Criminal Code”, including s. 25(1). Even when acting in lawful execution of duty, police officers can only use force that is necessary. “The allowable degree of force to be used remains constrained by the principles of proportionality, necessity and reasonableness”: R. v. Nasogaluak, 2010 SCC 6, 2010 S.C.C. 6 at paras. 32, 33, and 35.
40In order to demonstrate where the trial judge’s assessment went wrong, counsel cross-references the evidence to the cell video by dividing it into five distinct phases:
- Megan is brought into the cell and is facing south, as the Respondent holds his jacket form behind;
- Megan twists his head around to the left towards the Respondent, who “steps off the tracks”, guiding Megan to a position where he is facing the east wall;
- Megan is pushed into the south wall;
- Megan’s head and then feet turn or are turned to face the north wall; and,
- The Respondent decides to and does cause Megan to come to the ground on which he lands with his head closest to the south wall.
41The trial judge accepted the Respondent’s testimony that “Mr. Megan was coming after him and was angry and had his head in [his] face and could have (1) bit him, (2) head butted him, (3) kicked him, or (4) pushed him against the wall” and found that “[w]hen Mr. Megan lastly turned into Cst. Bellefeuille or so Cst. Bellefeuille felt, he believed he was going to be assaulted, then the takedown”.
42Counsel submits that what the trial judge failed to appreciate was that the Respondent’s testimony about what he said, thought and did during Phases 2 to 5, and especially 3 to 5, was not physically possible in the limited time that elapsed for each phase of action.
43Counsel’s position is that hurling a person who is handcuffed behind his back into the ground is a violent and dangerous action. It created the risk of serious head injury, and indeed, Megan did suffer serious injuries as a result. Nothing depicted in the video supports the contention that doing so was necessary in the circumstances.
The Character Evidence
44On the issue of the refusal of the trial judge to call character evidence, the Appellant argues that the Respondent had put his character into issue in three ways. He testified that:
i. he did not have a criminal record;
ii. he felt “terrible” that Megan got injured and he did not “want to have a name for something like that” in the First Nations community which he belonged to through his mother; and,
iii. he had promptly reported the incident to the duty sergeant, suggested he notify the SIU, proactively obtained the CCTV video form the Blue Lagoon and provided it and his notes to the staff sergeant for delivery to the SIU.
45In the course of giving evidence on his own behalf, the Respondent stated that he had no criminal record. Counsel argues that was sufficient to put his character in issue.
46Further, in stating that he did not “want to have a name for something like that in the First Nations community which he belonged to through his mother,” the implication is that he did not want to have a reputation for being heavy-handed. The Appellant submits that implicit in that sort of assertion is that he doesn’t already have such a reputation.
47Further, he testified that he had taken it upon himself to suggest that SIU be contacted. Counsel submits that action, coupled with him proactively obtaining a video form outside the bar, shows that he is attempting to show that he is above board.
48The Respondent stated in cross-examination that “I don’t lie”. Counsel argued that is different than saying “I am not lying”. The Appellant relies on R. v. McNamara, 1981 CanLII 3120 (ON CA), [1981] O.J. No. 3254, (C.A.) where Martin J.A. stated:
Manifestly, an accused does not put his character in issue by denying his guilt or repudiating the allegations made against him, nor by giving an explanation of matters which are essential to his defence. An accused is not entitled, however, under the guise of repudiating the allegations against him to assert expressly or impliedly that he would not have done the things alleged against him because he is a person of good character, if he does, he puts his character in issue.
The difficult question is whether the appellant crossed over the line of permissible repudiation of the charge and asserted that he was an honest man.
The trial judge said that he saw no distinction between the two.
49He ultimately determined that the Respondent’s character was not in issue, and did not permit cross-examination on that issue.
50At the hearing of this appeal, the Appellant advised that on the day this issue was being argued at trial, the Crown came into possession of certain information which it was prevented from using in cross-examination because of the ruling. The Appellant argues that this information could have affected the assessment of the Respondent’s testimony. The Respondent’s counsel agreed that he would not require an application for fresh evidence to be brought, as this was evidence which was available at trial, if the ruling to rely on character evidence would have been favourable to the Crown.
Respondent’s Position
51The Respondent’s overview notes that the trial judge rejected the Crown’s theory at trial that Cst. Bellefeuille unlawfully arrested Megan. Counsel submits that, on the evidence, the trial judge was entitled to do just that.
52Counsel argues that while the trial judge did not refer to all of the evidence that was presented to him, he was entitled to find, on the evidence that was before him, that the arrest was lawful. He points to the evidence of Megan stumbling, staggering, glassy eyes, belligerent attitude, and aggression towards Cst. Bellefeuille. He points to the evidence that Megan said that he lived in Aroland, was walking home, the temperature and Megan’s condition, and the fact that Megan could not provide an adequate address where he could go to in Geraldton, as factors which the trial judge could rely on in considering that it was reasonable for the arrest to ensure Megan’s personal safety, to protect him from the effects of possible hypothermia.
53Counsel argues that the evidence of Megan’s intoxication to the point of being unable to provide the officers with an address where he was staying is evidence which the trial judge could consider with respect to whether there were other reasonable ways to deal with the factor of Megan’s personal safety.
54He notes the evidence of Officer Wilson who testified that Megan’s utterance about “walking home” contributed in his mind to the grounds for arrest. Megan was questioned further about an address he had but there was confusion in the number and no street name was given. He could not recall when Megan was arrested.
55Counsel references the evidence that Megan was escorted to the police vehicle by the officer. Once at the vehicle, Megan resisted when told by the Respondent to put his hands behind his back. Handcuffs were applied. Counsel points to the Respondent’s evidence that upon arrival at the detachment, Megan refused to get out of the police vehicle, and after ultimately complying, he held him by the arm approaching the detachment. The Respondent testified that Megan continued to resist through the detachment towards the cells. At one point the Respondent grabbed the back of Megan’s jacket.
56Counsel points to the evidence of Officer Wilson and to a civilian guard at the detachment who described Megan as belligerent and obstructive.
57In the cell, counsel points to Megan’s increasing resistance and anger directed at the Respondent. The Respondent testified that he was concerned that he could be spat on, head-butted, kneed, or run into as Megan became increasingly aggressive, physically and verbally. Wilson confirmed that Megan appeared to be ready to do something more. Megan appears to turn toward the Respondent. The video from the cell area shows the Respondent reaching towards Megan’s back. The Respondent testified that he had many use of force options available to prevent what he called “pre-attack cues”, and reacted by putting Megan to the ground in a controlled manner.
58The civilian guard, Kerr, testified that he believed the Respondent took Megan down using what he referred to as “standard procedure”. He conceded there was a noise of impact when Megan hit the ground.
59The Respondent submits that the judge dealt with the issues of the lawfulness of the arrest, and the s. 25 analysis as it related to the incident in the cell. He acknowledges that the judge did not analyze the evidence in great detail but highlighted the points he was relying on to identify the issues and to make the decisions he did. The transcript of the reasons notes:
There are three conjunctive requirements for arresting someone pursuant to the Liquor License Act of Ontario. (A) there must be a reasonable grounds to believe that in this case Mr. Megan was intoxicated in a public place, (B) that there were reasonable grounds to believe there was a risk to the complaints… the complainants safety or someone else’s safety, and (C) there are reasonable grounds to believe that arrest was necessary in the sense that there were no other reasonable ways of preventing the risk of safety. See Regina versus Ing., a case from 2012 from the Ontario Supreme Court 1339.
60Counsel argues that even if the trial judge did not specifically reference each of the Liquor License Act requirements, he references the evidence relating to each. On page 7 of judgment, the judge discusses issue of the arrest, in relation to the Liquor License Act. He notes the three conjunctive requirements, and he was alive to the factors, particularly the element of the person’s safety.
61With respect to the Appellant’s ground of reasonable apprehension of bias, the Respondent agrees that, should I so find, the court would lose jurisdiction and this appeal should be allowed. Counsel notes, however, that there were numerous occasions where the trial judge indicated that he would remain open to further evidence and submissions with respect to the issue of the lawfulness of the arrest. He submits that in the course of the motion for a directed verdict, the lawfulness of the arrest did not play a part because of the evidence with respect to an unlawful assault and s. 25, there was sufficient evidence to deny the motion for nonsuit. Further, the judge’s statement that it was a lawful arrest “for the purpose of the motion only”.
62Further, he argues that the judge’s references to the Court of Appeal, while unfortunate, does not mean that at that point he had closed his mind. In this regard counsel cites R. v. Gamble, 2013 ONSC 7615, where at paras. 53 - 56, in the course of a sentencing appeal, Justice Durno stated:
[53] I am not persuaded the Crown has met the high threshold for a finding or real or perceived bias. The Crown has not displaced the presumption that judges will carry out their oath of office. I reach those conclusions for the following reasons.
[54] Trial judges are entitled to reach tentative opinions on the merits of an application. For example, in R. v. Parker [1998] O.J. No. 469 the Court of Appeal, while finding that the trial judge had gone too far in his comments, held that it was not inappropriate for a trial judge at the end of the Crown’s case to canvas with defence counsel the defence the accused intends to present and to express his, or her, tentative views concerning the viability of the defence. What is critical is that the trial judge remains open to be persuaded that his or her tentative opinion was wrong.
[55] Here, what the reasonable observer would have concluded was that the Crown had an up-hill battle ahead – that His Honour had formed a tentative position as to the propriety of filing the Notice. Upon first seeing the CSF, His Honour formed an initial opinion and raised it with the Crown. Judges are not required to remain mute when counsel wishes to advance arguments or positions that at first blush appear to have little merit to the trial judge. R. v. Kutynec (1992), 1992 CanLII 7751 (ON CA), 7 O.R. (3d) 277 (C.A.); R. v. Vukelich (1996), 1996 CanLII 1005 (BC CA), 108 C.C.C. (3d) 193 (B.C.C.A.) Indeed, it is often helpful to have counsel re-consider an issue and/or to raise concerns about where an argument might take counsel.
[56] What is also apparent is that interspersed with his cautionary comments the trial judge made the following statements: “… we’ll adjourn until Friday and if you want to go down that road, that’s fine, but I would think long and hard about it ..,” “Mr. Khoorshed may reconsider his position in light of my comments. He doesn’t have to …” and “I’m not making any decision on it.” These comments reflect the trial judge’s willingness to hear further argument and decide the case after full submissions. He remained open to be persuaded the Crown could rely on the Notice.
63Counsel argues that the same situation is present in this case. Although the judge expressed an opinion on the motion for a directed verdict that he had come to a conclusion, he made it very clear that he would remain open, and that there would be the right to cross-examine and make submissions, and that did happen.
64Further, the Respondent notes that the trial judge was never asked to recuse himself. In support of that argument counsel cites R. v. Curragh Inc. 1997 CanLII 381 (SCC), [1997] 1 S.C.R. 537, where the Supreme Court of Canada commented at para. 11:
[11] Our colleagues contend that allegations of bias should be made in a timely fashion and cite American cases for this proposition. We accept that in order to maintain the integrity of the court’s authority such allegations must, as a general rule, be brought forward as soon as it is reasonably possible to do so. However, in this case, the Crown took the courageous position of moving to have the trial judge recuse himself within 5 days of his demonstration of bias or at least the reasonable apprehension of bias. Thus it moved in a timely, appropriate and reasonable manner. The Crown certainly cannot be faulted on that score.
65Counsel argues that the Supreme Court of Canada is strongly suggesting that if there is going to be an assertion that there’s a real apprehension of bias, that assertion should be made as soon as it arises, and that was not done in this case.
66With respect to the s. 25 ground of appeal, the Respondent relies on the videotape from the cell filed as Exhibit 3 at trial. While the Appellant has argued that, based on a timeline, the Respondent’s actions as he described were physically impossible, the Crown at trial did not argue that. The analysis now suggested by the Appellant was not presented to the trial judge. Counsel’s argument is that the trial judge had the video at trial and was entitled to draw his own conclusions from that, and to reject any analysis that had been suggested by the Crown.
67Further, counsel submits that in considering the s. 25 issue, the judge also had before him the evidence of Cst. Wilson and the civilian guard, Kerr, which corroborated that of Bellefeuille.
68The Respondent also argues that the arrest was ongoing, from the time police first encountered Megan at the Blue Lagoon, and that throughout the time to put him into the cell, the evidence is that he was resistant. Counsel submits this is not just a short incident in the cell which resulted in the “grounding”. The grounding was the culmination of the arrest, in which Megan shows ongoing resistance.
69On the issue of the judge’s comment with respect to the evidence of the police officers, in particular the evidence of Wilson, counsel notes that the Crown did not ask the trial judge to reject any part of Wilson’s evidence.
70With respect to the issue of the judge having determined that the Respondent had not put his character in issue, counsel argued that the Appellant has to demonstrate a palpable, non-speculative and significant possibility that the error, by not finding that he had put his character in issue, could have affected the verdict. Counsel’s position is that if the judge made an error, the error could not have affected the verdict. Counsel argues that this case is not credibility based. It is based on the evidence as to what happened in the cell. He argues that the judge’s decision was based on evidence of Cst. Wilson, Kerr, and the videotape. The trial judge placed no reliance on what the Respondent said about his character.
71Respondent’s counsel submits that he agrees with the general principles as stated by the Appellant, which is that reasonable apprehension of bias arises when an informed and reasonable person viewing the matter realistically, and practically, and having thought the matter through, would think that the decision maker would not decide the matter fairly. Objectively, the person must be reasonable, invested with knowledge of all the relevant circumstances including judicial traditions of integrity and impartiality, and the apprehension of bias must be reasonably based on what is observed. There must appear to be a real likelihood of bias. Surmise and conjecture is not enough.
Discussion
72In R. v. Gushman, [1994] O.J. No. 813 (Gen. Div.), Watt J., as he was then, stated at paras. 28 and 31:
It is well-settled that a tribunal of limited jurisdiction may lose jurisdiction to conduct proceedings on account of actual or apprehended bias. Judicial impartiality is a principle of natural justice. It is, further, an integral element in the fair trial guarantee of Charter s. 11(d) and of fundamental justice in Charter s. 7.
Fundamental to the test applied in cases where a reasonable apprehension of bias is alleged are two objective standards or elements. A standard of reasonableness is applied, not only to the observer, but also to what is observed. The observer, the person by whom bias must be apprehended, must be a reasonable person whom the law invests with knowledge of the circumstances which are said to give rise to the apprehension of bias. Further, the apprehension of bias must itself be reasonable from what is observed. In other words, it must be a reasonable apprehension, not one which is fanciful, imaginary, illusory or conjectural.
73In R. v. D’Souza, [2004] O.J. No. 3093, the Ontario Court of Appeal stated at para. 7:
The threshold for a finding of judicial bias or the appearance of bias is high. The assessment requires a careful and thorough review of the entire proceedings. The impugned conduct should be considered in the context of the particular circumstances. Bearing these strictures in mind, we nevertheless conclude that the appeal must be allowed on this issue.
74In determining whether there was a reasonable apprehension of bias, I must consider whether right-minded persons would think that, in the circumstances, there was a real likelihood of bias on his part. the bias which is exhibited need not be that directly intended but may be a bias which can be inferred from statements and actions of the trial judge, which unfortunately, may lead a reasonable observer to conclude that the trial judge was being unfair, even if inadvertently.
75The question to be answered is whether the trial judge is to be seen as prematurely weighing the evidence or determining the outcome of the case. Some of the remarks which I have considered in answering this question are:
- In the course of the emotion for a directed verdict, in the course of submissions by the Crown, before hearing submissions from the Crown on the lawfulness of the arrest, the judge indicated that he was satisfied, on other bases, that the motion should be denied, and a prima facie case had been established, stated: “Having indicated already that I will rule, and do rule, that the arrest was lawful for reasons that to me seem quite obvious under the circumstances … ”
- At the conclusion of the motion, in response to the Crown’s query as to whether he was foreclosed form making submissions with respect to the lawfulness of the arrest, the trial judge stated:
THE COURT: You’re not foreclosed. I only make that ruling with respect to the motion, within the context of the motion. And that’s the only ruling I should make. If you want to go ahead and argue that same motion, especially for the court of appeal, on the trial proper, fine with me.
The reference to arguing the same motion before the Court of Appeal indicates that the judge had determined the issue of lawful arrest before giving the Crown an opportunity to make submissions on the issue.
- In the course of the trial, the perception of having prematurely decided that issue, was reinforced when the Crown asked in the course of the cross-examination of the accused to revisit the issue by asking the officer about the grounds of arrest. The Crown stated that he made it clear that he wished to raise that issue to which the judge responded:
THE COURT: Yeah. I did rule that the arrest was lawful. I did say that you could pursue it further. I didn’t want to restrict, because it was a motion, not the trial proper and that’s caught me. I’ve been looking for the magic bullet that gives your argument some credibility and so far, I haven’t seen it.
- Then further, the judge stated:
THE COURT: You haven’t finished cross-examining the officer with respect to that incident. I am still looking for the evidence that is going to change my mind and so far, I haven’t seen it, so. From the motion, that is. But I’m, my mind is wide open to anything new and wonderful that you may have to offer.
- The difficulty that comment demonstrates is that the judge is not commenting that he is still looking for evidence in order to make up his mind, but that he has now been “caught”, and that he was looking for evidence that “… is going to change my mind …”. Although he goes on to say that say that “my mind is wide open”, the additional part of that phrase “… to anything new and wonderful that you may have to offer” is an indication that would be perceived by a reasonable-minded person that, in fact, his mind is clearly already made up.
- On a further occasion, in submissions, the Crown indicates that he intends to make the unlawful arrest argument “… unless Your Honour tells me now that you don’t want to hear from me on that point,” to which the Court replies:
THE COURT: Oh, no. I mean, I’m sure the Court of appeal would be more than happy to have this court listen to your argument and not, certainly not cut you off.
The reference to the Court of Appeal again indicates the judge has made up his mind before hearing submissions.
76The Respondent has argued that, as in R. v. Curragh Inc., the Crown did not ask the judge to recuse himself at the time of the trial, and that “allegations of bias must, as a general rule, be brought forward as soon as it is reasonably possible to do so”. I consider that using this as a basis of Notice to Appeal, filed May 22 for a conviction May 3, is reasonable.
77Does the above show that the judge had reached a firm decision? In other words, did his comments individually, or collectively, “cross the line”? As noted in R. v. Parmar, 2005 BCCA 187, where the decision of Doherty J.A. in R. v. Stewart, 1991 CanLII 11753 (ON CA), [1991] O.J. No. 81 (C.A.), at page 320, is referenced at para. 38:
… At some point, incidents which, considered in isolation, may be excused as regrettable but of no consequence, combine to create an overall appearance which is incompatible with our standards of fairness.
78In the course of this appeal, the Respondent acknowledged that, if a reasonable apprehension of bias was found, a new trial should be ordered. Although a civil case, the comments in Hazelton Lanes Inc. v. 1707590 Ontario Ltd., 2014 ONCA 793, are equally appropriate in this case. The Court provided a summary of the principles as follows at paras. 63 to 65::
[63] The appearance of impartiality was emphasized in Wewaykum Indian Band v. Canada, 2003 SCC 45, [2003] 2 S.C.R. 259, at para. 66:
[W]here disqualification is argued, the relevant inquiry is not whether there was in fact either conscious or unconscious bias on the part of the judge, but whether a reasonable person properly informed would apprehend that there was.
[64] A review of this court’s recent statements in Chippewas of Mnjikaning First Nation v. Ontario, 2010 ONCA 47, 265 O.A.C. 247, leave to appeal to S.C.C. refused, [2010] S.C.C.A. No. 91, at paras. 229-30, and Marchand (Litigation Guardian of) v. Public General Hospital Society of Chatham (2000), 2000 CanLII 16946 (ON CA), 51 O.R. (3d) 97, leave to appeal to S.C.C. refused, [2001] S.C.C.A. No. 66, at para. 131, reveals the following principles for assessing a claim of reasonable apprehension of bias that are particularly applicable in this case:
- “Impartiality reflects the state of mind in which the judge is disinterested in the outcome and is open to persuasion by the evidence and submissions. In contrast, bias reflects a state of mind that is closed or predisposed to a particular result on material issues”: Marchand, at para. 131.
- The threshold for a finding of reasonable apprehension of bias is high. “Courts presume that judges will carry out their oath of office”: Marchand, at para. 131.
- To determine that a reasonable apprehension of bias exists requires “a fact-specific inquiry” that considers “the facts and circumstances of a particular trial”: Chippewas, at para. 230.
- “The party alleging reasonable apprehension of bias has the onus of proving it on the balance of probabilities”: Marchand, at para. 131.
- The grounds for finding a reasonable apprehension of bias must be substantial; establishing an allegation of judicial bias requires “cogent evidence”: Marchand, at para. 131.
[65] If a judge’s words or conduct give rise to a reasonable apprehension of bias, it colours the entire trial. Therefore, on appeal, “a finding of actual or apprehended bias will ordinarily result in a new trial”: Marchand, at para. 131.
79The appearance of judicial impartiality is as important as the reality. The relevant inquiry is not whether there was in fact either conscious or unconscious bias on the part of the judge, but whether a reasonable person properly informed would apprehend that there was.
80The appellant has satisfied me that a reasonable person would find that apprehension of bias was created by the judge’s comments which created a perception that he had prematurely judged the legality of the arrest.
81In R. v. Camardi, 2009 ONCA 43, the Ontario Court of Appeal stated at para. 4:
In addition, the trial judge summarily dismissed counsel’s attempt to argue that there should be a mistrial without giving counsel any opportunity to make submissions. The trial judge’s response to counsel’s entirely proper motion for a mistrial could only further convey the reasonable apprehension that the trial judge had prejudiced the matter.
82As such, the matter must be remitted before a different judge of the Ontario Court of Justice.
83As I have determined that there should be new trial it is not necessary for me to determine the other issues on appeal. However, in the interests of providing some assistance to the new trial judge, I will indicate that, in my view, the decision not to permit cross-examination of the accused at trial on his character was an error, based on the evidence of the accused as given. First, his evidence is a general statement that “I do not lie”, and that he did not “want to have name for something like that” in the First Nations community. That puts his evidence into the nature of what Martin J.A. in R. v. McNamara, says puts his character in issue.
84With respect to the Appellant’s argument that the trial judge erred in his comments with respect to the testimony of police officers that the Crown was bound by all of that evidence, I do not find the comments of the judge to go so far as to have done so. The comments can be reasonably interpreted as the judge describing the witness as a police officer.
85For the reasons I have noted, I have concluded that on a balance of probabilities, based on the judge’s determination that the arrest was lawful without having heard from the Crown in the motion for a directed verdict, and his subsequent comments about a change of mind, a magic bullet, and taking the matter to the Court of Appeal, are sufficient to give rise to an appearance of bias.
86The appeal is allowed. A new trial is ordered to be heard before a different judge of the Ontario Court of Justice.
___”original signed by”
Mr. Justice T. A. Platana
Released: April 7, 2015
CITATION: R. v. Bellefeuille, 2015 ONSC 2189
COURT FILE NO.: CR-13-0043-AP
DATE: 2015-04-07
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty The Queen,
Appellant
- and -
Brian Bellefeuille,
Respondent
REASONS FOR JUDGMENT
ON SUMMARY CONVICTION APPEAL
Platana J.
Released: April 7, 2015
/mls