CITATION: R. v. Ronald, 2016 ONSC 1687
COURT FILE NO.: CR14-2310
DATE: 2016/03/09
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
Gurpreet Ronald and Bhupinderpal Gill
Defendant
Brian Holowka and Jason Neubauer, for the Crown
Ronald Michael Smith and Jessica Abou-Eid, for the Defendant, Gurpreet Ronald
James Harbic, for the Defendant Bhupinderpal Gill
HEARD: February 8, 2016
RUling re disqualification
Parfett J.
[1] Defence counsel representing Gurpreet Ronald requests that I disqualify myself as trial judge in this matter on the basis of a reasonable apprehension of bias.
[2] For the reasons that follow, the application is dismissed.
Background
[3] The Applicant Gurpreet Ronald and her co-Accused, Bhupinderpal Gill are charged with first degree murder in the death of Mr. Gill’s wife, Jagtar Gill. The Crown alleges the two accused were having an affair and they conspired together to kill Jagtar Gill in order to open the way for a permanent relationship.
[4] The Crown expects to lead evidence at trial of the following events. On January 29, 2014, Jagtar Gill was at her home in Ottawa recuperating from minor surgery. She was heavily medicated with pain killers. It was a Wednesday and the two younger children of the family were at school. The oldest child was in high school and was at home studying for exams. Mr. Gill – a bus driver by profession – was also home that morning.
[5] At approximately 11:00 a.m., Mr. Gill persuaded his daughter to go with him to run some errands. As they set out, they passed in front of Ms. Ronald’s house and Mr. Gill and Ms. Ronald waved to one another. Shortly afterward, there was a brief cellphone call between them. Mr. Gill and his daughter went to various places, eventually ending up at the Sobey’s grocery store. Immediately prior to going to the Sobey’s, they picked up Mr. Gill’s nephew from his school because he was sick.
[6] At the Sobey’s, Mr. Gill and Ms. Ronald met briefly at the cash register and then had a brief conversation in the parking lot out of the hearing of the two children. Mr. Gill then drove home letting the children off in the driveway and parking the car in the garage. The children entered the house through the unlocked front door and discovered the body of Jagtar Gill.
[7] The autopsy revealed that Mrs. Gill had been both beaten and stabbed. Cause of death was multiple sharp and blunt force injuries.
[8] The bail hearing in this matter was heard in October 2014. I was the judge who heard the bail hearing and detained Ms. Ronald pending her trial. This matter is now set for trial starting in May 2016.
Position of the Parties
[9] Defence argues that comments made during the course of the bail hearing and in the reasons for decision demonstrate that certain negative conclusions have been drawn concerning his client and therefore, a reasonable and properly informed person would conclude there was a reasonable apprehension of bias.
[10] The Crown states that the comments made both on the record and in the reasons for decision were made in the context of the bail hearing and reflect a proper assessment of the evidence led by the Crown in determining whether the primary, secondary or tertiary grounds required Ms. Ronald’s detention in custody pending her trial.
Principles of law
[11] The test for whether a judge should disqualify herself does not require any actual bias or impartiality. The test is whether there is a reasonable apprehension of bias. This principle is meant to preserve the appearance of justice.
[12] The test on a recusal motion is whether there is a reasonable apprehension of bias or lack of impartiality. The Supreme Court first articulated the test in Committee for Justice and Liberty v. National Energy Board,[^1] and it was later affirmed in R v. S.(R.D.)[^2],:
… 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…[T]hat 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 decision maker], whether consciously or unconsciously, would not decide fairly.”[^3]
[13] The threshold for apprehension of bias is a high one – a mere suspicion is not enough. Justice Cory in R v. S. (R.D.) highlighted that the informed person is presumed to understand the “traditions of integrity and impartiality that form a part of the background and [be] apprised also of the fact that impartiality is one of the duties that judges swear to uphold”.[^4] As such, a judge should carefully consider a recusal motion, as a claim the judge is not impartial is also a claim that challenges “the integrity of the entire administration of justice”.[^5]
[14] In Miglin v. Miglin[^6], the Court of Appeal discussed the threshold for a finding of apprehension of bias and indicated:
The principle [that the grounds for an apprehension of bias must be substantial] was adopted and amplified in R. v. S.(R.D.) to reflect the overriding principle that the judge’s words and conduct must demonstrate to a reasonable and informed person that he or she is open to the evidence and arguments presented. The threshold for bias is a high one because the integrity of the administration of justice presumes fairness, impartiality and integrity in the performance of the judicial role, a presumption that can only be rebutted by evidence of an unfair trial. Where, however, the presumption is so rebutted, the integrity of the justice system demands a new trial.[^7]
[15] The Supreme Court of Canada in its decision on the Miglin case also noted that:
We see no reason to interfere with the Court of Appeal’s assessment of the record, nor with its conclusion that although the trial judge’s comments were intemperate and his interventions at times impatient, they do not rise to the level necessary to establish a reasonable apprehension of bias.[^8]
[16] The assessment of judicial bias is a difficult one. It requires a careful and thorough review of the proceedings, since the cumulative effect of the alleged improprieties is more relevant than any single transgression.[^9]
[17] The onus lies on the party challenging the judge’s impartiality to provide evidence establishing on a balance of probabilities a real likelihood of a reasonable apprehension of bias.[^10]
[18] “Impartiality” means an absence of bias. Bias is “a state of mind that is in some way predisposed to a particular result, or that is closed with regard to particular issue”.[^11] Furthermore, the basis for the predisposition must be wrongful or inappropriate in that it is not objectively justifiable.[^12] Consequently, the objective of the test is to ensure not only the reality, but the appearance of a fair adjudicative process. Bias is therefore inextricably linked to the requirement of impartiality.[^13]
[19] The test is contextual and highly fact specific.[^14] It also contains two objective elements. As noted in R. v. Bertram:
The person by whom bias is to be apprehended must be a reasonable person whom the law invests with knowledge of the circumstances which are said to found the apprehension of bias. The bias, in other words, must be apparent to a reasonable observer similarly circumstanced as the applicant. The second objective element relates to the nature of the apprehension of bias itself. The apprehension of bias must itself be reasonable. To put the matter in another way, reasonableness must be characteristic not only of the observer, but, equally, of the apprehension of bias.[^15]
[20] The mere fact that a judge presided over the bail hearing does not disqualify her from sitting as the trial judge.[^16] As Justice Dupont noted in R v. Lacombe,[^17]:
The information relating to the offence submitted on bail applications is often not in dispute. The onus on the Crown differs from that at trial. While the judge at the bail hearing will consider the evidence as it relates to the probability of the conviction of the accused he is not required and does not make a finding of guilt and in most cases does not deal with the issue of credibility of witnesses who may be crucial to either the defence or the Crown at the trial. Undoubtedly, during the bail hearing, the presiding judge will become acquainted with allegations of the Crown as they relate to the guilt of the accused and allegations of the defence related to his or her innocence. Other information may be revealed. Such would not of necessity give rise to a reasonable apprehension of bias on the part of such judge should he subsequently preside at the trial. Indeed much of such information may result from media coverage. The judge will, notwithstanding information received on a bail hearing or from the media, be quite able to preside at a subsequent trial with complete objectivity, fairness and impartiality.
[21] This view was affirmed in R. v. Perciballi[^18], where the Court of Appeal stated:
[T]here is nothing inherent in the nature of the decision that must be made on either application – the bail review or the wiretap authorization – that gives rise to a reasonable apprehension of bias where the same justice presides over both proceedings. Although it is necessary in each proceeding to make an assessment of the evidence presented by the prosecution, the tests are very different and their application does not require any determinative findings on the guilt or innocence of an accused person. The allegation of bias must be based, rather, on what actually transpired during the specific proceedings.[^19]
[22] In addition, making findings of credibility in relation to the accused or to key witnesses does not necessarily disqualify a judge from hearing the subsequent trial as it “[i]s a necessary and accepted part of the judicial role and of the administration of justice that those conclusions will not impermissibly flow through to the trial proper”[^20].
[23] A final factor to consider, although not determinative, is that this matter is going to a jury trial and ultimately, the trial judge will not be making findings of fact. As noted in R. v. Giroux:
Par ailleurs, le juge de première instance a rejeté cette requête en récusation au motif qu’il n’avait pas à se prononcer sur les faits, son rôle se limitant à trancher les questions de droit et a dirigé le jury quant au droit applicable alors qu’il revenait au jury de décider de la culpabilité ou de l’innocence de l’appelant.[^21]
Analysis
[24] The issue to be determined is whether I ought to disqualify myself from hearing the trial because of a reasonable apprehension of bias arising out the conduct of the bail hearing.
[25] Defence counsel was clear that he was not alleging actual bias, but rather that the comments made on the record and in the reasons for decision on the bail hearing demonstrated a reasonable apprehension of bias. Furthermore, defence counsel stated that neither the result of the bail hearing, nor the comments of the court concerning the strength of the Crown’s case form any part of the basis for his argument.
[26] Defence counsel’s focus was on specific comments made concerning his client that he alleges demonstrate an apprehension of bias. The specific portions of the reasons for decision complained of are as follows:
Furthermore, the evidence suggests strongly that Harpreet Dhesi is also unlikely to be able to exert any control over the Applicant. Her knowledge of her sister was astonishingly limited given her evidence that since 2008 they saw one another 2-3 times a week and spoke daily on the telephone. Despite this level of contact, Harpreet knew next to nothing about what was going on in her sister’s life. She was unaware that the Applicant’s marriage was in difficulties or that the Applicant was having an affair. Harpreet had been alerted to the fact that Mrs. Gill was unhappy with the extent of the relationship between her husband and the Applicant. She was also aware that Mr. Gill was a constant presence in the Applicant’s life. To Harpreet’s knowledge, the Applicant turned to Mr. Gill whenever she needed assistance, such as to change a tire or move some bulky items, yet it never once occurred to Harpreet that she ought to question this relationship. The Applicant lied with impunity to her sister about very significant aspects of her life and her sister was oblivious. I can only conclude that the Applicant is someone who is capable of a great deal of deceit and deviousness and her sister is not capable of perceiving when she is being deceived.
That said, while the evidence before this court indicates that the Applicant is certainly capable of interfering with the administration of justice, I cannot find that there is a substantial likelihood that she would do so.
The killing was planned. A number of cases dealing with the tertiary grounds use the randomness or inexplicable motivation for the crime as a factor in favour of applying the tertiary ground. Furthermore, some courts have indicated that if the crime has a rational motivation that fact would reduce the applicability of the tertiary ground. With all due respect to those decisions, I do not agree that the existence of a rational explanation for the killing reduces the potential applicability of the tertiary ground. This is a case in point. The killing was very rational – a cold-blooded, calculated decision to kill in order to further the relationship between the Applicant and her lover. In my view, persons who would see killing as an appropriate alternative to divorce possess a mindset that sees little value in human life and place a much greater value on status within the community.
[27] Defence counsel also relies on comments made by the Court to defence counsel during the course of his submissions. These comments reflect a similar concern as noted in the reasons for judgment that the accused had concealed her relationships from her family, lied to her sister and therefore she could be described as deceitful.
[28] Although the comments highlighted by defence counsel are strongly worded and evocative that fact is not of itself sufficient reason for finding an apprehension of bias.[^22] The issue is rather whether those comments reveal any set views that would suggest prejudgment of the critical issues in the trial.[^23]
[29] As noted earlier, specific comments alleged to give rise to a reasonable apprehension of bias must be assessed in the context of the entire proceeding. In the present case, the proceeding was a bail hearing. Evidence had been presented by the Crown that the accused had hidden from her family the true nature of her relationship with the man who became her husband. Specifically, she told her sister (one of the proposed sureties) that there was nothing of a romantic nature between her and Mr. Ronald. She visited India with her family, but left early having advised her family that she intended to look for work in Canada. In fact, the purpose of returning early to Canada was to marry Mr. Ronald. In addition, the Crown led evidence that the accused had also hidden her affair with her co-accused from her family and more importantly from her sister – someone to whom she spoke on an almost daily basis.
[30] The secondary grounds were a hotly contested part of the bail hearing. Consequently, the reliability of the sureties was one of the key issues. In particular, the issue was whether the proposed sureties would be capable of ensuring the accused abided by her bail conditions. As noted earlier, one of the proposed sureties was the accused’s sister. The sister had testified to the close relationship between her and the accused. The Crown had presented evidence that suggested the sister had been kept in the dark by the accused about significant events in the accused’s life. It was in the context of assessing the sureties’ reliability that comments were made concerning the accused’s capacity for deceit. Defence counsel argued that the court’s conclusion on the secondary grounds has no bearing on the issue of bias. I disagree. The court’s finding that given all of the evidence and despite the accused’s behaviour, the Crown had failed to demonstrate there was a substantial likelihood she would not abide by conditions is a factor to be considered. That aspect of the decision places the comments made by the judge within their full context – the analysis of the issue of the secondary grounds in the bail hearing.
[31] It is important to note that the accused did not testify and therefore, no findings of credibility were made concerning her. Defence argues that the court’s comments concerning the accused’s character were more troubling given the fact she did not testify. However – and as pointed out by the Crown – the comments concerning the accused’s character were based on the evidence presented by the Crown and supplemented by the sister’s testimony. Consequently, the observations could not be described as ‘wrongful’, ‘inappropriate’ or ‘not objectively justifiable’.
[32] The final comment made by the court formed part of the assessment of the application of the tertiary grounds to the potential judicial interim release of the accused. It is a comment on the specific circumstances surrounding the commission of the offence and must be read in that context.
[33] The question then becomes: Would a reasonable observer, having heard the evidence at the bail hearing and understanding the issues to be determined on that hearing find there was a reasonable apprehension of bias leading to the conclusion that the trial judge could not exercise her function impartially at trial? I do not believe that the reasonable observer could so conclude.
[34] Consequently, the application for recusal is dismissed.
Madam Justice Julianne Parfett
Released: March 9, 2016
CITATION: R. v. Ronald, 2016 ONSC 1687
COURT FILE NO.: CR14-2310
DATE: 2016/03/09
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
– and –
Gurpreet Ronald and Bhupinderpal Gill
Defendant
REASONS FOR JUDGMENT
Parfett J.
Released: March 9, 2016
[^1]: 1976 2 (SCC), [1978] 1 S.C.R. 369 [^2]: 1997 324 (SCC), [1997] 3 S.C.R. 484 [^3]: at para. 31 [^4]: at para. 111 [^5]: at para. 113 [^6]: (2003), 2001 8525 (ON CA), 53 O.R. (3d) 641 (CA). [^7]: At para. 29. [^8]: 2003 SCC 24 at paras. 26-27. [^9]: At paras. 29-30. [^10]: S. (R.D.), at para. 114. See also Yukon Francophone School Board, Education Area No. 23 v. Yukon Territory (Attorney General), 2015 SCC 25 at para. 25. [^11]: S.(R.D.), at para. 105. See also, R. v. Bertram, [1989] O.J. No. 2123 (HC) at para. 54. [^12]: Ibid. [^13]: Yukon, at para. 22. [^14]: Yukon, at para. 26. [^15]: At para. 57. Emphasis in the original. [^16]: See R v. Jones, 2008 NSCA 99 at para. 26; R v. Williams, 2013 ONCA 477 at para. 2. [^17]: [1986] O.J. No. 328 (H.C.) [^18]: 2001 13394 (ON CA), [2001] O.J. No. 1712 (CA) [^19]: At para. 22. [^20]: R v. G.H. (2002), 2002 49363 (ON CA), 165 O.A.C. 56 (C.A.) at para. 6. See also R. v. Giroux, 2007 QCCA 1443 at para. ? [^21]: Giroux, at para. 29. [^22]: See Miglin, SCC decision at paras. 26-27. [^23]: Perciballi, supra. Note 10 at paras. 23-24.