COURT FILE NO.: 11228
DATE: 07/11/2016
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen
M. Poland, for the respondent
Respondent
- and -
Jennifer Gionet and Steven Harman
G. Cudmore, for the applicants
Applicants
HEARD: September 16 2016
TEMPLETON J.
RULING
Background
[1] Ms. Gionet and Mr. Harman were charged that on or about November 20, 2011, they committed arson with respect to their own property.
[2] On June 11, 2013, a trial date was set for April 23, 2014 and was scheduled to last approximately three days. The trial was adjourned from time to time thereafter but ultimately commenced on February 12, 2015 and continued on February 13, 17, 24, 25 and 26, 2015 to completion.
[3] The trial judge reserved his decision and adjourned the hearing to April 14, 2015 to be spoken to.
[4] On April 14, 2015, with the trial judge's decision still under reserve, the presiding judge ordered Ms. Gionet and Mr. Harman to return to court on May 12, 2015.
[5] On May 12, 2015, the trial judge's decision had still not been released so the matter was adjourned again by the Local Administrative Judge (the 'LAJ' ) to May 25, 2015 before the trial judge.
[6] On May 25, 2015, the trial judge found both Ms. Gionet and Mr. Harman guilty as charged and indicated that written reasons for his decision would follow on or before May 29, 2015. He ordered a Presentence Report and remanded Ms. Gionet and Mr. Harman out of custody until August 5, 2015.
[7] Lengthy written reasons for the conviction of Ms. Gionet and Mr. Harman were ultimately released by the trial judge on June 18, 2015.
[8] On July 17, 2015, counsel for the Crown and the defendants were advised in writing by the LAJ that the trial judge would be retiring from the Court effective August 31, 2015.
[9] In this letter, the LAJ also confirmed (a) that he had spoken to counsel by teleconference earlier that day; (b) his understanding that the date of August 5, 2015 (which had been set by the trial judge for the sentencing hearing) was problematic for defence counsel; and (c) the case would be reassigned pursuant to s. 669.2(2) of the Criminal Code.
[10] According to counsel, on July 23, 2015, the LAJ spoke to both trial counsel by way of teleconference and confirmed that the trial judge would not be completing this case. No reasons were provided.
[11] The proceedings were brought forward to July 23, 2015 and adjourned to September 15, 2015 to be spoken to.
[12] In the meantime, the Crown served and filed a Notice of Application pursuant to Section 669.2 of the Criminal Code seeking an order allowing the continuation of proceedings before another judge who has jurisdiction to impose the sentence. That Notice was also adjourned for hearing to September 15, 2015.
[13] The matter was adjourned again from time to time thereafter. No objection by either counsel to these adjournments is noted in the file..
[14] In December, 2015, counsel for Ms. Gionet and Mr. Harman served and filed a Notice of Motion seeking the declaration of a mistrial.
[15] The Crown's Notice of Application for continuation before another judge and this Motion for a mistrial were heard before me on September 16, 2016 and are the subject of this Ruling.
The Arguments
[16] In support of the Motion for a mistrial, trial counsel prepared, served and filed his own sworn Affidavit. Mr. Cudmore who argued the Motion for the declaration of a mistrial before me was not counsel at trial.
[17] In his Affidavit, trial counsel recorded personal observations and impressions he had made regarding the trial judge's conduct and demeanour during the trial and at its conclusion. He then rendered an opinion based on these observations and impressions.
[18] At the hearing of the Motion, Mr. Cudmore told the Court that he was not relying on the observations, impressions or opinion of the Affiant. He also acknowledged that there is no reliable evidence to support the contention advanced by the Affiant.
[19] Mr. Cudmore submitted that he was, instead, advancing the argument that there is a lack of appearance of justice in this case given that the trial judge was either removed from this proceeding or withdrew from this proceeding without the provision of reasons to the parties.
[20] Mr. Cudmore submitted that this Motion for a mistrial is therefore based on what happened subsequent to the conclusion of the trial proper.
[21] Mr. Cudmore submitted the following:
• substantial time frames expired before Ms. Gionet and Mr. Harman were informed of both the trial judge's decision and then the reasons for that decision;
• multiple court appearances by Ms. Gionet and Mr. Harman were required through no fault of their own;
• approximately a month after the release of the written reasons, the Local Administrative Justice confirmed in writing and orally that the trial judge would not be completing this case but did not disclose to the parties why he would or could not do so;
• it is not clear to anyone whether the trial judge was removed from this proceeding and all of his other cases or whether he refused to complete his cases;
• it is the position of Ms. Gionet and Mr. Harman that the trial judge was removed from this and all of his other pending cases;
• it is the position of Ms. Gionet and Mr. Harman that the trial judge either would not or was not permitted to complete the sentencing phase of this proceeding;
• even if Ms. Gionet and Mr. Harman were not entitled to know the reason for the termination of the trial judge's involvement in this case at all, no reasons have been provided with respect to why the trial judge either would not or could not complete the sentencing phase of this proceeding prior to his retirement on August 31 2015;
• it is conceded that the bar is high with respect to mistrial applications;
• the silence of the Court's administration with respect to why the trial judge did not complete not only this proceeding but all of his pending cases, invites parties to draw an inference (or at least to speculate) that something must have been amiss and generates concern about the integrity of the proceedings prior to the conclusion of the trial judge's involvement;
• the transcript of the evidence does not alone speak to all of the factors touching upon the integrity of the proceedings; for example, the competency of the trial judge would not necessarily be reflected in the transcript;
• by analogy, the importance of need for "sufficiency of reasons" with respect to a decision of the court at the conclusion of a trial is so that the parties (a) can understand why the decision(s) was made; and (b) are able to have a full appreciation of the basis of the decision regardless of whether they agree with the decision or not.
• in this context, Ms. Gionet and Mr. Harman are asking why the trial judge would not complete their case and are entitled to know why a decision was taken for him not to complete the case;
• by further analogy, the requirement for "sufficiency of reasons" in the delivery of judgment is important to the administration of justice and is equally important in situations such as this where a judge is removed not just from this proceeding but removed from all of his cases without reason;
• when a judge is removed or resiles from continuing a proceeding until conclusion and no reasons are provided to the parties involved, justice is not manifestly and undoubtedly seen to be done;
• the issue here is the appearance of justice; the appearance of justice is totally lost in this case;
• a change in the identity of the presiding judge may not have any impact on the rights of the parties and their right to a fair hearing if there was an appropriate reason for the initial judge to not continue (such as illness or death or retirement) but in this case when the reason is not known the appearance of justice is prejudiced as is their right to the assurance that their trial was fair and just;
• in this proceeding, the perception is that the appearance of justice was not manifestly and undoubtedly seen to be done as a result of which the declaration of a mistrial is the only appropriate result.
[22] Mr. Poland's submissions for the Crown were as follows:
• this is a novel argument without legal precedent - there is no legal basis for a mistrial on the basis for which it is sought;
• the circumstances in this case fall within the s. 669.2 (1) of the Criminal Code where it states that "where an accused or a defendant is being tried by …a justice…and the justice …is for any reason unable to continue, the proceedings may be continued before another …justice …who has jurisdiction to try the accused or defendant."
• s. 669.2 (2) of the Criminal Code further provides that "… where an adjudication was made by a justice before whom the trial was commenced…the justice before whom the proceedings are continued shall, without further election by an accused, impose the punishment or make the order that is authorized by law in the circumstances."
• there are three standard reasons for which a judge is unable to continue with proceedings - retirement, illness and death - but there is no requirement for the Court or a judge to disclose any reason he/she is unable to continue with the proceedings;
• the law is clear that the declaration of a mistrial, like the declaration of a stay, should be granted only as a last resort, in the clearest of cases and where no remedy short of that relief will adequately redress the actual harm occasioned;
• the analogy relied upon by counsel on behalf of Ms. Gionet and Mr. Harmen is not apposite. Reasons for judgments are the primary mechanism by which judges account to the parties and the public for the decisions they render. Those reasons have to be sufficient to allow an appellate court to determine the correctness of those reasons. In this case, the trial judge has provided those reasons;
• there is nothing untoward about the passage of time between the date of the decision and the release of the reasons therefor;
• there is no evidence before the Court that the trial judge was removed from this or any other case over which the judge was presiding. In any event, neither the Local Administrative Judge nor the Regional Senior Judge have the power to remove a sitting justice;
• the concept of judicial independence requires that a shroud of discretion screen the machinations of judicial assignment;
• counsel do not and ought not to have a right to be made aware of or be involved in the reasons a judge sits or does not sit on a case;
• Ms. Gionet and Mr. Harman are attempting to graft a requirement to give reasons into s. 669.2 of the Criminal Code under the guise of "appearance of justice";
• the lack of a requirement to give reasons in this context ensures and maintains the independence of the judiciary;
• all judicial decisions including motions such as this have to be decided on the basis of evidence, not on the basis of speculation;
• there is no evidence that anything negatively affected the trial judge's ability to render a proper judgment in accordance with the law; and
• the full answer to this Motion for a mistrial is found in the written reasons of the trial judge which reasons provide the comfort to which Ms. Gionet and Mr. Harman are entitled.
[23] In his reply, Mr. Cudmore submitted:
• the Crown has indicated that there is no evidence that anything negatively affected the trial judge's ability to render a proper judgment in accordance with the law but Ms. Gionet and Mr. Harman can't get the evidence and that is part of the problem;
• the Crown is correct, Ms. Gionet and Mr. Harman are trying to graft a requirement for disclosure of reasons into s. 669.2 of the Criminal Code. If a trial judge is unable to continue with a proceeding, the question that is relevant is "when did this inability arise"?
• the fact that a Motion for a mistrial on this basis is unprecedented does not mean to say that it is invalid.
Analysis
[24] In order to properly address the argument made by Ms. Gionet and Mr. Harman that the appearance of justice has not been manifestly and undoubtedly seen to be done in this case by virtue of the lack of disclosure as to why another judge has been assigned for the sentencing hearing, I must first consider what is meant by the "appearance of justice" and then by the words "manifestly and undoubtedly seen to be done".
[25] In my view, the "appearance of justice" is not a catch-all phrase intended as a basis or an umbrella for all complaints, dissatisfaction or the curiosity of litigants involved in and with the justice system.
(a) The "Appearance of Justice"
[26] The appearance of justice is an essential element in any trial.[^1]
[27] In The Appearance of Justice, the Honourable Justice Anderson wrote, "In its most obvious expression, the appearance of justice is a Judge who listens courteously, deals with the parties and their counsel even-handedly and articulates a judgment convincingly and with appropriate moderation … But the issues run deeper and more extensively than the way in which a Judge appears to conduct a trial. The appearance of justice is conditional on institutional, procedural, functional, participatory and public elements of justice" [^2]
[28] The Honourable James Spigelman noted that, "An important manifestation of the principle is also the foundation of judicial accountability. I refer to the obligation to publish reasons for decision. This obligation requires publication to the public, not merely the provision of reasons to the parties." [^3]
[29] The Ontario Court of Appeal held in R. v. Laws that "[t]he perceived fairness of the criminal justice system is its most vital characteristic. Public confidence requires public scrutiny wherever possible. Private trials which exclude the accused are antithetical to this core value. Where the circumstances of the exclusion of the accused are such as to inflict significant damage on the appearance of justice, the question is not whether there is prejudice to the accused. Rather, the issue is the harm to the criminal justice system itself." [^4]
[30] It is interesting to note that a positive description of what is "the appearance of justice" is rare. The Courts deal time and again with respect to what it is not. In other words, we know that conduct that demonstrates bias, secrecy, exclusion of an accused in certain circumstances, excessive judicial interference, jury tampering etc. fall afoul of the appearance of justice.
[31] In R. v. Kokopenace [^5], the Supreme Court of Canada affirmed a prior reference by the Court in R. v. Barrow [^6], "[h]e also emphasized another key point: the importance — the “crucial” importance — of the appearance of justice, namely “the public perception of the fairness of the proceedings."
[32] The appearance of justice concerns the effect of the proceedings as they would appear to the average citizen.[^7] It concerns the public perception of the fairness of the proceedings.
[33] On a Motion such as this, the court looks at the impression of justice that would be given to other people.
[34] It is axiomatic that at its core, justice is the "legal or philosophical theory by which fairness is administered"[^8]. The appearance of justice concerns the public manifestation and impression of the implementation of justice.
[35] In my view, the concept of the "appearance of justice" therefore does not provide carte blanche access by an accused person to the personal decisions of the judiciary or to the administrative decisions regarding judicial assignment save and except where those elements impact negatively on (a) the fundamental guarantee of fairness - fairness to the participants in the justice system; and/or (b) the openness principle.
(b) "Must be manifestly and undoubtedly seen to be done"
[36] In criminal proceedings in Canada, all utterances made by any person at any time in the courtroom are recorded when the proceedings are in session. The reason is simple - to ensure the accountability and accuracy of what was said by the speaker for the purpose of review by all participants in the justice system and members of the public.
[37] This "record" fundamentally safeguards the integrity of the proceeding and the application of the law. It simultaneously protects the rights of the accused and the State and holds all participants accountable along the criminal justice continuum for any failure to meet the required standard. Trial courts and courts of appeal are all subject to this cornerstone of our system.
[38] In my view, it is both the existence of a record and accessibility to that record and the courtroom that ultimately ensures for all Canadians that justice is done and is manifestly and undoubtedly seen to be done at all levels of our judicial system.
[39] For this reason, judicial decisions and the basis therefor must also be recorded or released in writing - a record must be created for all participants and for the public.
(c) Application of these principles
[40] In this case, all appearances and steps in the proceeding including the evidence taken at the trial and the decision of the trial judge (in addition to his reasons) were properly and duly recorded. There is no doubt that a record has been created with respect to all aspects of this proceeding as they transpired in the courtroom. Accountability of the participants in the process has therefore been secured.
[41] There has been no argument before me that based on the existing record and therefore what Ms. Gionet and Mr. Harman actually do know with respect to the evidence, the conduct of the trial proper and the reasons for the trial judge's decision, the "appearance of justice" has been undermined or prejudiced.
[42] Further, it has not been argued that the fact of a change in the judge hearing the sentencing phase of the proceeding has undermined the appearance of justice. Their complaint appears to rest solely on the fact that they don't know why there was such a change.
[43] I beg to differ. They do know why there has been a change. The trial judge was retiring effective August 31, 2015.
[44] But Ms. Gionet and Mr. Harman are not satisfied. They seek to know why he was retiring mid-proceeding or to have their opinion confirmed that he was removed from this case.
[45] Are they entitled to know more under the umbrella of the concept of "the appearance of fairness"?
[46] It is interesting to note that save and except where the administration of justice is or may be negatively impacted, changes in the identity of persons undertaking the roles of defence counsel and/or the prosecution during the course of any proceeding in the criminal justice system without the provision of reasons to the court is not uncommon.
[47] There is an underlying assumption that the effective administration of justice is not inexorably linked to the person but rather to the role that person plays. The significance of the role of a lawyer for an accused, for example, is enshrined in the Charter and by cases such as R. v. Rowbotham[^9].
[48] To ensure a fair hearing and a just outcome, the retention of only one lawyer for the duration of a proceeding is not required or essential but the proper execution of the function and duties of that counsel whoever he or she may be, is. Where there is no lawyer, it is the role of the judge to safeguard, as far as he/she is able, the rights of the accused in this regard.
[49] There is also an underlying assumption that the individual who has assumed the role in the place of another is both qualified and capable of discharging the duties of the position.
[50] A consideration of the competency of counsel can only be reviewed after the fact and solely on the basis of the record.
[51] In my view, these same tenets apply to the judge in a given proceeding. Of course, it is preferable for the same person who assumes a mantel of responsibility in a criminal proceeding to discharge that responsibility from commencement to conclusion. This is so for a variety of reasons including but not limited to familiarity with the evidence and expeditious completion.
[52] But a change in the person of the judge does not undermine the integrity of the duly recorded proceedings, the actual administration of justice or the appearance of the administration of justice.
[53] Changes in the person who occupies the role of the judge, the Crown or defence counsel can be necessitated for any number of reasons during the course of a single proceeding including but not limited to personal ill health or the ill health of a family member or loved one; death of the person of the judge or of a family member or loved one; finances; more urgent or pressing duties or responsibilities elsewhere; and/or overwhelming personal or family obligations. This list is not exhaustive.
[54] The basis for the need for a change in the judge presiding over a case may be deeply personal or it may be public. But the wheels of justice continue to move forward to successful conclusion regardless of the reason(s) for the change provided that those who assume the ongoing responsibilities are qualified and able to do so.
[55] There is no standard length of term of office for a Justice of the Superior Court of Ontario. A judge may sit for days, months or years prior to leaving the Court on a permanent basis. The duties and functions of the judiciary and the terms of service including election to supernumerary status and/or retirement are prescribed by law. Any person sitting as a Justice in the Superior Court may, as with all private citizens, make decisions about his/her career at any time for any reason.
[56] In my view, a judge of the Superior Court or any court for that matter is not required to and ought not be required to disclose any reason for a decision so deeply personal as whether to keep working outside his/her home or not.
[57] At all times, the record will speak for itself as to the quality of that Justice's work within the administration of justice vis-à-vis a particular accused. If there are concerns about the appearance of justice (such as bias, intemperance or unfairness) or about the administration of justice itself, it is the record that will reveal the flaws.
[58] Judges, like all participants in the justice system are human beings who bring to the courtroom on a daily basis both strengths and weaknesses that form the human character. Some days, judges do not feel well physically, mentally or emotionally. Some days, they are tired, bored or just plain "fed up". Most days, it is hoped, they are filled with enthusiasm, patience and understanding.
[59] But the overarching requirement of all judges is to strictly and ardently disallow all weaknesses, fears, opinions, biases, distractions or unique personality traits, any influence or role whatsoever in the execution of his/her office.
[60] There is absolutely no evidence before me that the trial judge did not achieve this essential objective.
[61] Ms. Gionet and Mr. Harman submit that "the appearance of justice was not manifestly and undoubtedly seen to be done" in this case because they have not been made aware of the reasons the judge assigned to the trial is not the same judge who will conduct the sentencing hearing.
[62] But there is no evidence before me that any one of the elements of the appearance of justice referred to by Justice Anderson above, has been breached in this case.
[63] The principle of open justice was observed. The judicial proceedings were and will be conducted in an open court to which the public and the press had and will have access.
[64] There is no evidence that the trial judge's obligation to ensure both a fair hearing and the absence of bias were not objectively satisfied.
[65] There is no evidence that the trial judge conducted himself in a manner that was either inappropriate or prejudicial to the accused.
[66] There is no evidence of procedural unfairness.
[67] As I have indicated above, the trial judge in this case issued lengthy and detailed reasons that clearly explain how and why he arrived at his conclusion.
[68] There is no evidence before me that public confidence in the administration of justice in the case has been or will be undermined by virtue of the fact of a change in the identity of the presiding judge for the purpose of sentencing.
[69] There is no evidence before me that any aspect of fairness in this case has been compromised or prejudiced by either the assignment of a different judge to conduct the sentencing hearing or the lack of disclosed reasons for the necessity of that assignment.
[70] In my view, the test on this Motion may be extrapolated from the test to be applied with respect to an allegation of an apprehension of bias. In that case, the test is what would an informed person, viewing the matter realistically and practically -- and having thought the matter through -- conclude?
[71] In R. v. S. (R.D.), the Supreme Court of Canada held that "This test contains a two-fold objective element: the person considering the alleged bias must be reasonable and the apprehension of bias itself must also be reasonable in the circumstances of the case. Further the reasonable person must be an informed person, with knowledge of all the relevant circumstances, including the traditions of integrity and impartiality that form a part of the background and apprised also of the fact that impartiality is one of the duties the judges swear to uphold. The reasonable person should also be taken to be aware of the social reality that forms the background to a particular case, such as societal awareness and acknowledgement of the prevalence of racism or gender bias in a particular community. The jurisprudence indicates that a real likelihood or probability of bias must be demonstrated and that a mere suspicion is not enough. The existence of a reasonable apprehension of bias depends entirely on the facts. The threshold for such a finding is high and the onus of demonstrating bias lies with the person who is alleging its existence. The test applies equally to all judges, regardless of their background, gender, race, ethnic origin, or any other characteristic." [^10]
[72] An informed person (including knowledge of the provisions of s. 669.2 of the Criminal Code and having access to the complete record and reasons for Judgment), viewing this proceeding realistically and practically - and having thought the matter through - would not conclude that the appearance of justice has been offended, damaged or prejudiced.
[73] I turn now to the question posed by Ms. Gionet and Mr. Harman as to why the trial judge could not have completed the sentencing phase of this proceeding prior to his retirement on August 31, 2015.
[74] Firstly, I reiterate my observations above. The reasons are personal to the trial judge and disclosure of those reasons is not necessary to meet the requirements of s. 662.2 of the Criminal Code, the administration of justice or the appearance of justice.
[75] Secondly, I note the following remark by the Local Administrative Judge in his letter to counsel dated July 17, 2015, "Thank you for participating in the teleconference held earlier today… I understand that August 5, 2015 is problematic for Mr. Dean and that the Crown is willing to co-operate in adjourning the matter to another date. A short 9:30 a.m. scheduling attendance can be arranged through the trial co-ordinator."
[76] It appears that counsel himself had difficulty with the sentencing date in any event and on July 23 2015, the matter was adjourned on consent to the Assignment Court on September 15, 2015.
[77] Confidence in the administration of justice requires open and fair proceedings. It does not require disclosure of personal matters by the judicial officers involved in the administration that do not impact either the openness or the fairness of the proceedings.
Conclusion
[78] For all of these reasons, the Motion by Ms. Gionet and Mr. Harman for a mistrial is dismissed.
[79] On November 14, 2016 a date for the sentencing phase of this proceeding before me will be set.
[80] Counsel are to consult with each other and the trial co-ordinator prior to November 14, 2016 to determine a mutually agreeable date and time prior to December 20, 2016. The only time I am unavailable is the week of December 12, 2016. Notwithstanding the fact that I may be assigned to other matters in the interim, staff have been instructed that this case takes priority.
[81] The requirement that this matter be concluded for Ms. Gionet and Mr. Harman prior to December 20, 2016 is non-negotiable unless defence counsel is unavailable.
“Justice L. Templeton”
Justice L. Templeton
Released: November 7, 2016
CITATION: R. v. Gionet, 2016 ONSC 6894
COURT FILE NO.: 11228
DATE: 2016/11/07
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen
- and -
Jennifer Gionet and Steven Harman
RULING
Templeton J.
Released: November 7, 2016
[^1]: Ross v. Bacchus, 2015 ONCA 347 [^2]: [2004] WkoLawRw 1; (2004) 12 Waikato Law Review 1 [^3]: "Justice 'seen to be done' or ' seem to be done'?" Law Council of Australia, International Law Section, March 10, 2016 [^4]: 1998 CanLII 7157 (ON CA), 41 O.R. (3d) 499 [^5]: 2015 SCC 28, [2015] 2 S.C.R. 398 [^6]: 1987 CanLII 11 (SCC), [1987] 2 S.C.R. 694 [^7]: Barrow, supra [^8]: Oxford Dictionary [^9]: 1988 CanLII 147 [^10]: 1997 CanLII 324 (SCC), [1997] 3 SCR 484