ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
CITATION: R. v. Jarrar, 2015 ONSC 2873
COURT FILE NO.: CR-13-70000076-00AP
DATE: 20150501
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
STEVEN HANS HASSAN JARRAR
Appellant
Kim Walker for the Respondent
Self-represented
HEARD: April 15, 2015
B. P. O’Marra, J
REASONS FOR JUDGMENT
[ON appeal from the judgement OF JUSTICE F. CLEMENTS of the ontario court of justice dated APRIL 20, 2013]
[1] The appellant appeals from an order dated April 30, 2013 that he enter into a recognizance for two years to keep the peace and be of good behavior. The Crown had applied for the order pursuant to s. 810.2 of the Criminal Code. Evidence was heard before Justice F. Clements over four days in February of 2013. The appellant was represented by counsel until he chose to represent himself at the very end of the application.
[2] On February 25, 2015 the appellant appeared before Justice MacDonnell of this Court. He advised that the only appeal ground he would pursue was that there was a reasonable apprehension of bias in the proceedings in the Ontario Court of Justice. On that basis the appellant was granted an expedited hearing date of April 15, 2015. It was further ordered that the appellant was not required to file a factum. However he was to file a written statement setting out further details of the alleged reasonable apprehension of bias. The Crown was ordered to file a factum.
[3] On the hearing date I received an eight-page handwritten document from the appellant setting out his specific concerns about the hearing before Justice Clements. The appellant made oral submissions as well.
[4] The evidence on the s. 810.2 application included the following:
On March 12, 1996 the appellant committed an aggravated assault on a woman. He was on probation for assault at the time. He was sentenced on June 9, 1997 after a trial to life imprisonment. On January 10, 2002 the Ontario Court of Appeal reduced the sentence to 15 years.
The appellant spent the majority of his time in voluntary segregation at Kingston Penitentiary. He did not take part in most of the rehabilitative programs offered at the facility. He was released in June of 2012.
On July 24, 2012 the appellant approached a 13-year-old girl he did not know on a subway. He spoke to her and gave her his card which had information regarding modelling and exotic dancing.
Between September 3 and 7, 2012 the appellant approached a woman who police described as emotionally disturbed. The appellant gave her his card. The two later exchanged text messages. The messages sent by the appellant were increasingly obscene.
[5] The Crown called the following witnesses at the section 810.2 hearing:
i. Detective Constable Scott Peters, attached to the High Risk Offender Unit of the Toronto Police Service, is the officer who applied to the court for a preventative peace bond under section 810.2 of the Criminal Code. D.C. Peters provided information regarding the appellant’s background, outlined the steps he took in preparing the section 810.2 application, and further outlined the steps he took to assist the appellant with rehabilitative efforts.
ii. Peter Reynolds, the manager of assessment and intervention with Correctional Services Canada, provided information to the court regarding the information regarding the appellant gathered by Correctional Services. Mr. Reynolds focused on the considerable length of time the appellant spent in maximum security while in custody and, of that time, the further considerable amount of time the appellant spent in voluntary segregation.
iii. Erin Stockman-Murphy, a retired parole officer who worked for Correctional Services Canada at the Kingston Penitentiary, testified that she was the appellant’s parole officer and recounted her efforts to manage the appellant while he was in custody. Her view was that the appellant was a difficult inmate to manage, that he did not accept responsibility for his previous actions, demonstrated no remorse at all and assessed him as a high risk to re-offend violently.
iv. Dr. Nathan Mandelzys, a clinical psychologist who performed contract work for Correctional Services Canada, was qualified to provide opinion evidence on the issue of risk assessment and risk management. Dr. Mandelzys completed a file review on the appellant on November 27, 2006 and another one in February of 2009. He attempted to conduct a risk assessment, but in both cases the appellant refused to participate. The doctor’s risk assessment of the appellant after the completion of both reviews was that the appellant was likely to cause death or serious harm to another person before the expiry of his sentence.
[6] Also considered by the trial Judge, on consent of both parties, during the section 810.2 application, was a series of reports prepared about the appellant by various agencies. The reports included a grounds for fear report, prepared by D.C. Peters on May 24, 2012, the appellant’s criminal record, the synopsis for the assault for which the appellant received a conditional discharge, documents related to the appellant’s aggravated assault conviction on March 12, 1996, documents relating to an in-custody assault conviction regarding an incident which occurred on January 7, 2001, three criminal harassment occurrence reports dated April 29, 2008, July 25, 2012 and September 15, 2002, a large number of documents prepared by Correctional Services Canada, including primarily assessments on the appellant during the years he was serving his sentence for the aggravated sexual assault, and five National Parole Board decisions regarding the appellant.
PRINCIPLES THAT APPLY TO A CLAIM OF JUDICIAL BIAS
[7] The Ontario Court of Appeal in Marchand (Litigation Guardian of) v. The Public General Hospital Society of Chatham, 2000 CanLII 16946 (ON CA), [2000] O.J. No. 4428 set out the well established principles as follows at paragraph 131:
Before considering this ground of appeal, we will briefly review the principles that apply to a claim of judicial bias. These principles, now well established, have recently been summarized by the Supreme Court of Canada in R. v. S. (R.D.), 1997 CanLII 324 (SCC), [1997] 3 S.C.R. 484, 118 C.C.C. (3d) 353. They are as follows:
All adjudicative tribunals owe a duty of fairness to the parties who appear before them. The scope of the duty and the rigour with which the duty is applied vary with the nature of the tribunal. Courts, however, should be held to the highest standards of impartiality.
Impartiality reflects a 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.
“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." (at p. 524 S.C.R.)
The test for bias contains a twofold objective standard: the person considering the alleged bias must be reasonable and informed; and the apprehension of bias must itself be reasonable. In the words of de Grandpré J. in Committee for Justice and Liberty v. Canada (National Energy Board), 1976 CanLII 2 (SCC), [1978] 1 S.C.R.. 369 at p. 394, 68 D.L.R. (3d) 716, approved of by the Supreme Court of Canada in S. (R.D.), supra:
[T]he 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...."
The party alleging bias has the onus of proving it on the balance of probabilities.
Prejudgment of the merits, prejudgment of credibility, excessive and one-sided interventions with counsel or in the examination of witnesses and the reasons themselves may show bias. The court must decide whether the relevant considerations taken together give rise to a reasonable apprehension of bias.
The threshold for a finding of actual or apprehended bias is high. Courts presume that judges will carry out their oath of office. Thus, to make out an allegation of judicial bias requires cogent evidence. Suspicion is not enough. The threshold is high because a finding of bias calls into question not just the personal integrity of the judge but the integrity of the entire administration of justice.
Nonetheless, if the judge's words or conduct give rise to a reasonable apprehension of bias, it colours the entire trial and cannot be cured by the correctness of the subsequent decision. Therefore, on appeal, a finding of actual or apprehended bias will ordinarily result in a new trial.
[8] The appellant submits that Justice Clements was polite, courteous and allowed everyone at the hearing to be heard. He does not allege that the judge said anything before the ruling that indicated he had prejudged the matter. Nonetheless the appellant submits that the judge was biased and acted unfairly.
[9] A careful review of his submissions reveals the appellant’s real concerns and complaints are the following:
The judge relied on a number of witnesses who were not credible.
Detective Constable Scott Peters had a conflict of interest since he was involved in the “wrongful conviction” of the appellant in 1997.
The risk assessment opinion made by Dr. Nathan Mandelzys was biased and unfair. The appellant claims that evidence penalized him for continuing to proclaim his innocence.
[10] When the appellant discharged his lawyer at the end of the application there was an exchange between Justice Clements and the appellant that is relevant to this appeal.
Mr. Jarrar, I understand your frustration. I understand that you are unhappy about these conditions. I understand that you maintain our innocence in terms of the index offence. I understand that you feel that these conditions do not directly relate to the allegations that gave rise or that led to your conviction on the index offence. And those are appropriate things for you to have raised with me. But having raised them with me, I disagree with you. My view is that based on the reasons that I gave and the finding I made that the Crown had met the test as set out in the section that there is a risk here, a reasonable risk, a reasonable fear of imminent and serious harm being committed by you and as a result I am going to impose conditions that…attempt to address that larger issue.
Hassan Jarrar: In any event, I will enter into recognizance on the basis of, on the basis that it will stop at some point, that it’s not gonna keep going because I have responsibilities and I’d like to go on with my life. I have the responsibility to the Innocence Project and I have the responsibility of a mom and a dad, you know, and I am going from Scarborough to where I live with my mom and this is just another burden on the shoulder, so police officers stopping me somewhere and saying let me see your papers.
The Court: Well, there is no doubt it is a restraint on your liberty and I am cognizant of that and I am not unconcerned about that. But given the findings I made, I feel obliged to impose some conditions at this stage that address that overall concern and these seem to be appropriate conditions. That said, I am quite happy to build into this a review mechanism over the next two years and take a look at it again and invite you back and Detective Constable Peters and anybody else from the unit who have information to give about it. I would say this in passing; Detective Peters struck me as having a fairly sympathetic view of your situation.
[11] These comments by the judge were thoughtful and considerate. He acknowledged and understood the appellant’s disappointment with the result. He built in a review process during the two-year term to reassess the conditions if appropriate.
[12] The onus is on the appellant to prove that there was a reasonable apprehension of bias on a balance of probabilities. Disagreements with findings of credibility, inferences drawn and the ultimate decision do not, without much more, establish a reasonable apprehension of bias. The appellant has not met the onus in this case.
RESULT
[13] Appeal dismissed.
Mr. Justice B. P. O’Marra
Released: May 1, 2015
CITATION: R. v. Jarrar, 2015 ONSC 2873
COURT FILE NO.: CR-13-70000076-00AP
DATE: 20150501
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
Respondent
– and –
STEVEN HANS HASSAN JARRAR
Appellant
REASONS FOR JUDGMENT
Mr. Justice B. P. O’Marra
Released: May 1, 2015