COURT FILE NO.: CR-16-1987-00
DATE: 2018 03 06
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
CARSON COUGHLIN, for the Crown
- and -
PRABHJEET SINGH,
ABHIJEET NAGRA, and
DILSHER SINGH
LEO SALLOUM, for PRABHJEET SINGH,
ROOTS GADHIA , for ABHIJEET NAGRA, and
NIC ROZIER and KATERINA PERCHENOK for DILSHER SINGH
IAN SMITH and AMY OHLER, Amicus
REASONS FOR DIMISSAL OF RECUSAL APPLICATION
DURNO, J.
[1] Prabhjeet Singh brought several applications with respect to the location of his trial. Having been appointed a Case Management Judge for the case, I was conducting the motions in relation to the trial location. The first motion was a recusal application. On January 8, 2018, I dismissed the application with reasons to follow. These are the reasons.
Background
[2] While a more fulsome background for the pre-trial applications and Superior Court proceedings is set out in the Reasons on the Transfer issues, 2018 ONSC 1532, at paras. 37-125, the following will place the recusal application in context.
[3] The accused are charged with unlawful act manslaughter out of an incident in which a co-worker at a Mississauga warehouse died after having an air hose put outside of his pants at his rectum. The incident was captured on video at the warehouse.
[4] After a preliminary inquiry, the accused appeared in the Superior Court, 21 months and 9 days after the Ontario Court information was sworn. At the first Superior Court appearance, counsel and the accused who were not on designations were told that there was a courtroom shortage in the Davis Courthouse and anyone setting a trial date in Brampton should proceed on the basis that the trial could be held in Orangeville, Milton, Guelph or Kitchener. Mr. Salloum appeared on that date for Prabhjeet Singh by designation.
[5] On February 9, 2017, a pre-trial conference was held and potential trial dates discussed in court. During those discussions, Mr. Grill was present on behalf of Prabhjeet Singh. All counsel and accused in attendance were told that it was not known if the trial would be in the Davis Courthouse. Mr. Grill said nothing in the pre-trial or in court after those comments about trial transfers, any personal issues or the location of the trial.
[6] The case was set for trial on November 14, 2017. At the Trial Readiness Court appearance on November 3, 2017, I told counsel the week of pre-trial motions would be held in Kitchener. That afternoon the trial judge’s secretary emailed all counsel that the trial would be in Kitchener. She explained that because of ongoing trials there was no suitable courtroom available in Brampton for this trial, that the Court would continue to monitor the courtroom situation and if a courtroom became available the trial would be moved back to Brampton.
[7] On November 7, 2017, Mr. Grill applied to adjourn the case citing soft tissue injuries he received in a car accident in early October and a further injury to his calf that occurred more recently. He said that driving or sitting in a car for four hours a day was not feasible. He could not travel to Kitchener because of his injuries.
[8] He also said his application was a plea to keep the trial in Brampton. He taught at Osgoode Hall Law School Monday and Wednesday nights and had a child with significant parenting responsibilities. He continued:
I would likely have to bring the application as well, because I haven’t made – I haven’t been able to make the necessary arrangements that I otherwise would have if I was doing – if I chose to do a trial out of town.
[9] Mr. Grill said that he had never heard the Assignment Court comments about transfers and took responsibility for Mr. Salloum not telling him about it. He continued, that had it been communicated to him properly,
I would have indicated, I can, you know I can take that risk, but not in the winter months because I’m teaching and I can made arrangements in the other months. It’s a reason, not an excuse.
[10] His affidavit filed in support of the adjournment said that if the trial was held in Kitchener it would likely require accommodations such as shorter sitting hours.
[11] A new trial date was tentatively set for February 12, 2018 but I required a couple of days to confirm the schedule. That afternoon when advised of the issues, the Regional Senior Judge and the Trial Coordinator re-arranged the schedule so that the trial could be held in Brampton. A memo was sent to counsel advising that the trial would be in Brampton because of Mr. Grill’s medical issues only. Otherwise the trial would have been in Kitchener.
[12] At a doctor’s appointment the next day, Mr. Grill was told he had concussion symptoms and should not be practicing. The following day another adjournment application was brought by Mr. Salloum on behalf of Mr. Grill. February 12, 2018 was set for trial with the possibility of having the pre-trial motions heard the week of January 29th if Mr. Grill was able to proceed at that time. Counsel told what they were told when the first date was set, that it was uncertain if the trial would be in the Davis Courthouse.
[13] As the appearance was about to finish, Mr. Grill sent a text message to Mr. Salloum advising that at the pre-trial motions on March 29, 2018 or February 12, 2018, depending on his availability, he would bring a motion that if the trial was not in Brampton he would apply to be removed as counsel of record. After receiving full submissions from all counsel, it was determined that having that motion on the eve of trial was unacceptable. The issue had to be determined well in advance of trial, lest Prabhjeet Singh be without counsel at the start of trial.[^1]
[14] Mr. Salloum said he could argue the motions before January and would require one week to prepare his material. He was given one week and the application was set for November 30, 2017.
[15] Two days later, Mr. Salloum wrote to the Crown and Trial Coordinator, with copies to counsel for the co-accused, advising that Mr. Grill had decided the schedule directed in court was unacceptable and he would not bring the motions in compliance with the Court’s directions. Mr. Grill wanted to argue the motions personally and not have Mr. Salloum do so. He would respond to a Crown or court application for a change of venue. Until then he would rely on the reasonable expectation the trial would be in Brampton. He reserved the right to argue that the trial could only be held in Brampton and to be removed from the record. Independently of Prabhjeet Singh, he reserved the right to bring a motion that preserved his right to practice law in a geographically restricted fashion that does not include lengthy trips to distant parts of the province.”
[16] On November 24, 2017, I released an endorsement directing that any motions in relation to the location of the trial or for counsel to be removed from the record be heard by December 15, 2017, with all material filed by December 1, 2017. Otherwise they would not be heard.
[17] On November 30, 2017, Leora Shemesh appeared for Mr. Grill and sought further time to prepare for the motions and reiterated the view they were premature. She said that Mr. Salloum could not argue the motions because he was not on the correct Legal Aid Panel to be permitted to do so.
[18] Ms. Shemesh provided the following list of what she referred to as Mr. Grill’s motions:” a “Brampton only” motion, a motion that the Superior Court had no jurisdiction to move cases anywhere, whether it was within or out of the region where the indictment was filed, a motion that having a jury selected in Brampton sit in Kitchener did not comply with the Juries Act, a s. 10(b) application that Prabhjeet Singh would be deprived of his counsel of choice if the trial was not in Brampton, and if those applications failed, and application to be removed as counsel of record. She added that there might be an application to remove me as the Case Management Judge because of my involvement in transfers and because I had released the November 24, 2017, endorsement without input from counsel.
[19] Two days later, Ms. Shemesh appeared and applied to have Mr. Grill removed as counsel of record. She submitted that his condition had deteriorated over the previous 24 hours so that he could not continue on the case.
[20] On December 8, 2017, with Prabhjeet Singh having no counsel, I appointed amicus to address the issues raised by Ms. Shemesh with regards to the Court’s jurisdiction to transfer cases. In addition, counsel were told that at the direction of the Chief Justice of the Superior Court, the trial would be held in Kitchener.
[21] At a subsequent appearance, I provided a series of questions to be addressed by amicus, counsel for the co-accused and Prabhjeet Singh based on the issues Ms. Shemesh indicated that were not case specific. With the Court’s jurisdiction to move cases anywhere and having juries selected in Brampton sitting outside of the Central West Region, those threshold issues could make any issues specific to Mr. Grill academic if the court had not jurisdiction to transfer cases.
[22] Prabhjeet Singh said that Mr. Salloum was helping him and that he would make submissions on the transfer issues himself. When asked by the court if he was bringing a recusal application, he said that he was not.
[23] On December 20, 2017, Ms. Shemesh appeared and said she would represent Prabhjeet Singh on the applications and for the Kitchener trial subject to two scheduling issues during the scheduled trial dates. There was one week when she had another trial commitment that could not be changed. A second trial week, was the same week she had a trial in the Ontario Court in Toronto. She committed to apply to adjourn that trial. The arguments on the transfer motions were set for January 5, 8 and 9, 2018. Amicus was to file by December 29, 2017 and all other counsel by January 4, 2018.
[24] Based on Ms. Shemesh’s word that she would apply to adjourn the Toronto trial and anticipating that the adjournment would be granted, arrangements were made for the Crown application for the jury to take a view and the defence motions for challenge for cause to be heard the week of January 29, 2018. Eight hundred jury panel members were summoned for jury selection from January 31 to February 2, 2018.
[25] Two days later, Ms. Shemesh wrote to the Crown and the trial coordinator advising that her client in Toronto would not agree to her brining an adjournment application so that she would be unable to assist Prabhjeet Singh. She did not mention the transfer applications she had agreed to argue.
[26] On January 4, 2018, at 4:30 p.m. Mr. Salloum faxed all counsel and the Trial Office 80 pages of material. He indicated that he was now retained by Prabhjeet Singh. The material included a recusal application, an application to judicially review the order of the Chief Justice transferring the case to Kitchener, in the alternative a Criminal Code s. 599, change of venue application to have the trial heard in Brampton, and an adjournment application “with severance in aid.” His material included that he agreed with amicus that all the issues raised by Ms. Shemesh regarding jurisdiction were within the Court’s jurisdiction. Neither counsel for the Crown, co-accused, amicus or the Court had been notified of any of the new motions before the eve of the applications.
The Positions of Counsel
[27] While put differently in his factum to which I will return, in oral submissions, Mr. Salloum argued that there was an appearance of bias if I were to hear his applications. He did so on three bases.
[28] First, I had been involved in the transfer of cases previously. In a letter to the then President of the Criminal Lawyers’ Association on January 13, 2015, former Regional Senior Judge, the Honourable Francine Van Melle, said that I was the judge who had been primarily involved in assigning criminal cases elsewhere after the mandatory “Monday morning of trial pre-trial” conferences were completed. Mr. Salloum argued that the process that was designed to move cases from Brampton involved me. It was “created by a human and probably more than one human.” There would be some “process design” in place in terms of “how meetings or phone calls would be held and how various Regional Senior Justices or the Chief Justice, would be looped in.” “Someone said that we should meet on Mondays, we should have these people present at the Monday meeting.” None of these things were known. Mr. Salloum “sort of heard indications of it from the Court “that all these things are reviewed every Monday” and that I was involved in the movement of some trials.
[29] As he would be arguing that transfer decisions in 2014, 2015, 2016 and 2017, including the Chief Justice’s, were “all wrong,” and that I had been involved in some of the transfers created a reasonable apprehension of bias. He clarified that it was the process that was “all wrong” because it did not include administrative law safeguards which apply to all administrative decisions. A reasonable observer would be saying “you’ve been doing this all wrong” and conclude I was not entirely impartial to the question whether the moving of cases was done fairly.
[30] Second, Mr. Salloum argued that I had been involved in moving this case three times. With regards to the Chief Justice’s transfer order “we don’t have a lot of information about the mechanism, the behind the scenes element here, but it seems to be an inescapable conclusion that someone brought the case to the attention of the Chief Justice of Ontario.” In submissions, he conceded that when counsel said that the Superior Court had no jurisdiction to transfer cases it “could well have been important” to the Superior Court when asked if it was the type of issue that would be reported to the Chief Justice.
[31] Mr. Salloum continued that there would be a very real apprehension that I went to the Chief Justice and provided her with “an incomplete picture of [Prabhjeet] Singh’s circumstances.” There was a strong appearance that had Prabhjeet Singh not been arguing about how and when to bring a “Brampton Only” motion that there never would have been a transfer order.
[32] Third, because I have refused to order the trial be held in Brampton, there is a reasonable apprehension of bias. A reasonable observer could come to the conclusion that I was not indifferent whether this trial was held in Brampton or Kitchener. Since I sent a memo to counsel after Mr. Grill’s first adjournment application, it was something I could do and have been declining to do again despite repeated requests by Mr. Grill, Ms. Shemesh and Mr. Salloum.
[33] While never addressed in oral submissions, Mr. Salloum’s factum also noted the “very stern language” used in the November 24, 2017 endorsement following Mr. Salloum’s letter advising that Mr. Grill was not going to comply with the Court’s directions. Mr. Salloum’s factum included:
It is submitted that the design of the question placed before amicus also raises concerns. The Case Management Judge was both involved in selecting amicus (who ultimately advised the court that the process that has been in place is not improper), and in choosing to ask only jurisdictional questions, rather than also inquiring as to whether the jurisdiction was properly exercised.
The question of jurisdiction was posed to amicus in a way that entirely elided the fact that an administrative grant of authority under the Courts of Justice Act does not create a feudal fiefdom. The question of whether jurisdiction exists is an incomplete question without the immediate corollary question which is how that jurisdiction should be exercised.
[34] Ms. Shemesh raised the issue of the November 24, 2017 endorsement being issued without input from counsel as well. Mr. Salloum who was present in court when the suggestion was made did not address this assertion in his factum or oral submissions.
[35] Crown counsel, counsel for the co-accused and amicus submitted that the recusal application should be summarily dismissed. In doing so, they relied upon the following.
[36] In R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, the Supreme Court of Canada held at para. 53:
… Deliberate and calculated defence tactics aimed at causing delay, which include frivolous applications and requests, are the most straightforward examples of defence delay. Trial judges should generally dismiss such applications and requests the moment it becomes apparent they are frivolous.
[37] In R. v. Cody, 2017 SCC 31, the Court noted at para. 38:
In addition, trial judges should use their case management powers to minimize delay. For example, before permitting an application to proceed, a trial judge should consider whether it has a reasonable prospect of success. This may entail asking defence counsel to summarize the evidence it anticipates eliciting in the voir dire and, where that summary reveals no basis upon which the application could succeed, dismissing the application summarily (R. v. Kutynec (1992), 1992 7751 (ON CA), 7 O.R. (3d) 277 (Ont. C.A.), at pp. 287-89; R. v. Vukelich (1996), 1996 1005 (BC CA), 108 C.C.C. (3d) 193 (B.C. C.A.)). And, even where an application is permitted to proceed, a trial judge's screening function subsists: trial judges should not hesitate to summarily dismiss "applications and requests the moment it becomes apparent they are frivolous" (Jordan, at para. 63). This screening function applies equally to Crown applications and requests. As a best practice, all counsel — Crown and defence — should take appropriate opportunities to ask trial judges to exercise such discretion.
[38] Finally, they rely upon the Criminal Proceedings Rules for the Superior Court of Justice:
34.02 The presiding judge may conduct a preliminary assessment of the merits of any pre-trial or other application on the basis of the materials filed, and, if satisfied that there is no reasonable prospect that the application could succeed, may dismiss the application without further hearing or inquiry.
[39] Given the Crown’s preliminary application, I felt it appropriate to hear what I expected would be a summary of Mr. Salloum’s position. Other than Ms. Shemesh’ reference to a potential recusal application on November 30, 2017 and Prabhjeet Singh’s comment when Mr. Salloum was assisting him to prepare that there would be no recusal application, there had been no indication there would be an application and if one was brought, upon what bases it would be argued until around 4:30 p.m. the night before the applications were to be argued. At the end of submissions from all counsel, Mr. Salloum said he saw no difference between summary dismissal of the recusal application and a straight dismissal as he had made all the submissions he wished to make on the recusal application. Reasonable Apprehension of Bias Applications
The Test
[40] In R. v. S.(R.D.), 1997 324 (SCC), [1997] 3 S.C.R. 484, held,
111 The manner in which the test for bias should be applied was set out with great clarity by de Grandpré J. in his dissenting reasons in Committee for Justice & Liberty v. Canada (National Energy Board) (1976), 1976 2 (SCC), [1978] 1 S.C.R. 369 (S.C.C.), at p. 394:
the apprehension of bias must be a reasonable one, held by reasonable and right-minded persons, applying themselves to the question and obtaining thereon the required information. ... [The] test is "what would an informed person, viewing the matter realistically and practically — and having thought the matter through — conclude."
This test has been adopted and applied for the past two decades. It 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. See Bertram, supra, at pp. 54-55; Gushman, supra, at para. 31. 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": R. v. Elrick (November 4, 1983), Osler J. (Ont. H.C.), at para. 14. See also Stark, supra, at para. 74; R. v. Lin (April 27, 1995), Doc. Vancouver CC950475 (B.C. S.C.), at para. 34. …
Bias
[41] In S.(R.D.), Supreme Court held at para. 105
In contrast, bias denotes a state of mind that is in some way predisposed to a particular result, or that is closed with regard to particular issues. A helpful explanation of this concept was provided by Scalia J. in Liteky v. United States, 114 S. Ct. 1147 (U.S. Sup. Ct. 1994), at p. 1155:
The words [bias or prejudice] connote a favorable or unfavorable disposition or opinion that is somehow wrongful or inappropriate, either because it is undeserved or because it rests upon knowledge that the subject ought not to possess (for example, a criminal juror who has been biased or prejudiced by receipt of inadmissible evidence concerning the defendant's prior criminal activities), or because it is excessive in degree (for example, a criminal juror who is so inflamed by properly admitted evidence of a defendant's prior criminal activities that he will vote guilty regardless of the facts). [Emphasis in original.]
[42] The Supreme Court of Canada examined a bias allegation in R. v. Teskey, 2007 SCC 25, [2007] 2 S.C.R. 267 and found:
20 The notion of judicial integrity was discussed at length by this Court in R. v. S. (R.D.), 1997 324 (SCC), [1997] 3 S.C.R. 484 (S.C.C.). It encompasses the expectation that judges will strive to overcome personal bias and partiality and carry out the oath of their office to the best of their ability. Impartiality was described as follows by Cory J. (at paras. 104-5):
... impartiality can be described — perhaps somewhat inexactly — as a state of mind in which the adjudicator is disinterested in the outcome, and is open to persuasion by the evidence and submissions.
[43] The Court of Appeal in Martin v. Samsone, 2014 ONCA 14 held starting at para. 31:
- Bias is a predisposition to decide an issue or cause in a certain way that does not leave the judicial mind open and impartial: Roberts v. R., 2003 SCC 45, [2003] 2 S.C.R. 259 (S.C.C.), at para. 58. …
The Reasonable Person
[44] In S.(R.D.), the Court addressed the reasonable person component at paras. 36 and 37:
The presence or absence of an apprehension of bias is evaluated through the eyes of the reasonable, informed, practical and realistic person who considers the matter in some detail (Committee for Justice & Liberty, supra.) The person postulated is not a "very sensitive or scrupulous" person, but rather a right-minded person familiar with the circumstances of the case.
It follows that one must consider the reasonable person's knowledge and understanding of the judicial process and the nature of judging as well as of the community in which the alleged crime occurred.
The Nature of the Application
[45] In S.(R.D.), at para. 113, the Court held:
Regardless of the precise words used to describe the test, the object of the different formulations is to emphasize that the threshold for a finding of real or perceived bias is high. It is a finding that must be carefully considered since it calls into question an element of judicial integrity. Indeed an allegation of reasonable apprehension of bias calls into question not simply the personal integrity of the judge, but the integrity of the entire administration of justice. See Stark, supra, at paras. 19-20. Where reasonable grounds to make such an allegation arise, counsel must be free to fearlessly raise such allegations. Yet, this is a serious step that should not be undertaken lightly.
[46] Watt J.A. provided further assistance in R. v. Nero, 2016 ONCA 160:
30 … the standard refers to an apprehension of bias that rests on serious grounds in light of the strong presumption of judicial impartiality: Committee for Justice and Liberty, at p. 395; Wewaykum, at para. 76. The grounds for the apprehension must be substantial: S. (R.D.), at para. 112.
31 … as a necessary consequence of the presumption of judicial impartiality, the onus of demonstrating bias lies with the party who alleges its existence: S. (R.D.), at para. 114. That party must prove bias on a balance of probabilities: Marchand (Litigation Guardian of) v. Public General Hospital Society of Chatham (2000), 2000 16946 (ON CA), 51 O.R. (3d) 97 (Ont. C.A.), at para. 131
33 Finally, at least as a general rule, allegations of bias or a reasonable apprehension of bias should be advanced as soon as it is reasonably possible to do so: R. v. Curragh Inc., 1997 381 (SCC), [1997] 1 S.C.R. 537 (S.C.C.), at para. 11.
[47] In R. v. Grant, 2016 ONCA 639, Laskin J.A. wrote at para. 128:
The appellants' submission must be assessed in the light of the high threshold for showing bias. We presume judges will be impartial. We presume they will carry out their oath of office and act fairly to litigants. This high threshold requires cogent evidence to make out a claim of bias. The test to meet, which has stood for many years, is would an informed person, viewing the matter realistically, and having thought the matter through, conclude that the trial judge would not decide the matter fairly: Committee for Justice & Liberty v. Canada (National Energy Board) (1976), 1976 2 (SCC), [1978] 1 S.C.R. 369 (S.C.C.), at p. 394.
[48] Here, the applicant argues that I would be reviewing my own transfer decisions. That issue was addressed by the Court of Appeal in R. v. S.M., 2013 ONCA 333 as follows at para. 23:
As noted, the applicant submits that this court should take into consideration that the trial judge was assessing her own conduct. I do not see the relevance of this point. There are many occasions on which judges must assess their own conduct, such as the appropriateness of particular jury instructions and rulings on mistrial applications for reasonable apprehension of bias. In such circumstances, it is assumed that judges execute their functions in a judicious and impartial manner. …
[49] In Beard Winter v. Shekdor, 2016 ONCA 493, the appellant sought to remove Doherty J.A. from his appeal. Doherty J.A. wrote at para. 10:
It is important that justice be administered impartially. A judge must give careful consideration to any claim that he should disqualify himself on account of bias or a reasonable apprehension of bias. In my view, a judge is best advised to remove himself if there is any air of reality to a bias claim. That said, judges do the administration of justice a disservice by simply yielding to entirely unreasonable and unsubstantiated recusal demands. Litigants are not entitled to pick their judge. They are not entitled to effectively eliminate judges randomly assigned to their case by raising specious partiality claims against those judges. To step aside in the face of a specious bias claim is to give credence to a most objectionable tactic.
[50] In R. v. Montoya, 2015 ONCA 786, the Court held at para. 9:
… An allegation of reasonable apprehension of bias should not be made lightly. That is because, as McLachlin C.J. said in Cojocaru (Guardian ad litem of) v. British Columbia Women's Hospital & Health Center, 2013 SCC 30 (S.C.C.), at para. 22:
There is a presumption of judicial integrity and impartiality. It is a high presumption, not easily displaced. The onus is on the person challenging the judgment to rebut the presumption with cogent evidence showing that a reasonable person apprised of all the relevant circumstances would conclude that the judge failed to come to grips with the issues and decide them impartially and independently.
Analysis
[51] The application is dismissed for the following reasons.
[52] The starting point is that the onus is on the applicant. What is required is cogent evidence to overcome the presumption of impartiality – not unsubstantiated allegations or speculation. What is also required is that the reasonable informed member of the public has obtained the relevant information in relation to criminal law proceedings and the background of this case.
[53] The reasonably informed member of the public would know about the courtroom shortage in Brampton, either from drawing a reasonable inference from the fact a six-story addition is being constructed or from spending time in the courthouse. The information would also include that the Supreme Court of Canada had determined that trials of this nature are presumptively to be completed in 30 months from the date the information was sworn. It would also include that this case first appeared in the Superior Court after over 21 months in the Ontario Court of Justice.
[54] The reasonable informed person would also know that the Superior Court conducts trials in three areas of law, that some trials often go well beyond their anticipated completion date and that the Court is committed to take all reasonable steps to keep cases in Brampton.
[55] Dealing with the first oral submission, I am not persuaded that the reasonable observer would have concerns for a reasonable apprehension of bias because of the previous transfer orders I made. While I have been involved in transfer decisions, the process by which the decisions were made had never been raised by anyone in hundreds of cases that I have dealt with since 2014. Of note, it is not the decisions that were being challenged it was the process by which the decision was made.
[56] What Mr. Salloum seeks to do is to introduce administrative law principles into a criminal proceeding. He concedes that this has never been argued before. He has provided no authority directly on point in a criminal law case. He submits that transfer orders have been made unfairly, a submission that has never before been raised.
[57] In this context, it is puzzling how a reasonable observer would feel that I was predisposed against an argument that had not previously been raised in relation to judicial administrative decisions in a criminal law proceedings, in this or any other context.
[58] The reasonable observer would also know that it was at the Court’s initiative that the issues were addressed as soon as the jurisdictional issues were raised and amicus appointed to assist the court with the issues Ms. Shemesh raised in describing Mr. Grill’s motions.
[59] Further, while the procedure for some of the transfer orders I made would be considered, the main thrust of the factum regarding transfers was to quash the order of the Chief Justice in this case. I did not make the second transfer order in this case. On Mr. Salloum’s approach, the Chief Justice’s decision could be judicially reviewed by any Superior Court judge.
[60] Further, while I am involved in the Monday morning pre-trials and some Monday scheduling when I am sitting, there are weeks when other judges have conducted the pre-trials and make the determinations. To exclude any judge who had ever had any involvement in the transfer of cases, would remove an undetermined number of Brampton judges. Even if it were possible to determine which judges were involved it would be time- consuming and unproductive.
[61] When asked what role the Court’s commitment to attempt to keep as many cases as possible in Brampton even after a transfer order, played in his recusal application or whether it was just “puffery”, Mr. Salloum said that he expected the Court would not take the assurances as something to be regarded as puffery. A reasonable observer, hearing the Court talk about taking steps to make sure the case returned to Brampton if it was at all possible, would find it difficult to imagine that Mr. Salloum was well-positioned to make a case that it was never necessary to move this case in the first place, and that doing so was done in error.
[62] Apart from the bias allegations, given some of Mr. Salloum’s unsubstantiated assertions such as that there are meetings involving several people each Monday and others, there are benefits to having a judge presiding who has some familiarity with criminal law procedure, scheduling and the transferring of cases. To have someone with no prior involvement or familiarity with Brampton would run the risk of some of Mr. Salloum’s speculative assertions being relied upon.
[63] Second, Mr. Salloum submits that I would have been involved in this case being brought to the Chief Justice’s attention and that the Chief Justice would have been given an incomplete picture of Prabhjeet Singh’s circumstances. Applications alleging reasonable apprehensions of bias, must be supported by cogent evidence, not speculation or allegations.
[64] It should hardly be surprising that when counsel raises jurisdictional issues regarding whether this and other courts have jurisdiction to address courtroom shortages in the manner they have been, that the issue would be brought to the attention of the Chief Justice. With another year anticipated before additional courtrooms are available in the Davis Courthouse, it should hardly be surprising that not only the Central West Region R.S.J. but the Chief Justice were made aware of the issues because the authority to transfer cases out of the region rests with the Chief Justice and within the region with the R.S.J. Clearly, the Chief Justice was contacted about the issue.
[65] That the Chief Justice was provided with incomplete information about this case is far from cogent evidence. Indeed, it is speculative and misleading. By the time Ms. Shemesh raised the general jurisdictional issues, there had already been a transfer order, an affidavit filed by Mr. Grill and submissions regarding his issues. While no details of his child care issues were ever provided beyond his comments on November 7, 2017, despite being promised by Ms. Shemesh, it is reasonable to infer that any case-specific issues were raised during the many court appearances before December 8, 2017. Mr. Grill’s childcare, teaching and physical issues were mentioned. To suggest that the information was never communicated to the Chief Justice before her decision is speculative, not cogent evidence.
[66] Had there been case-specific issues apart from those indicated during November, 2017, it is reasonable to assume that either Mr. Grill, Ms. Shemesh and/or Mr. Salloum would have mentioned them in their repeated requests that I direct the trial be held in Brampton.
[67] The speculation that the Chief Justice’s order was made because Prabhjeet Singh was asking for an assurance his trial would be in Brampton, ignores that there was a previous order – an order made before he sought any assurances.
[68] The third basis advanced in oral submissions was that I was not indifferent with regards to the trial being in Kitchener or Brampton. Presumably, the inference Mr. Salloum says the reasonable person would draw is that I wanted the trial held in Kitchener. The reasonably informed member of the public would know about the history of this case and the criminal process. That person would know that courtroom assignments were re-arranged to accommodate Mr. Grill’s physical injuries. That person would also know that the transfer motions schedules were adjusted twice to accommodate Ms. Shemesh personal and professional schedule relying upon her word that she would argue the applications if Mr. Grill could not. That reasonable person would also know of the Court’s stated commitment to do whatever is reasonable to keep cases in Brampton, even ones that have been ordered transferred.
[69] Further, that informed member of the public would know of Jordan and the Supreme Court’s direction that trials be conducted more efficiently and expeditiously. It would also include knowledge of the Superior Court’s two post-Jordan Practice Directions intended to ensure trials are conducted more efficiently and expeditiously.
[70] The citizen would also know that when a Brampton trial was held in Kitchener, shorter sittings hours applied. In the result, a trial in Kitchener is presumed to take longer than it would take in Brampton. With the challenges to scheduling imposed by Jordan, it would be a most curious position that this court would have a preference for a Kitchener trial that would take longer to complete while at the same time trying to schedule other trials so that they are completed in accordance with the Jordan framework.
[71] Finally in regards to the third oral submissions, it is based on a flawed premise – one that underlies many, if not all, of the transfer arguments advanced by the three counsel who have appeared for Prabhjeet Singh in the Superior Court. While noted in an earlier endorsement, the words of Justice Doherty bear repeating from R. v. Allen (1996), 1996 4011 (ON CA), 110 C.C.C. (3d) 331 (Ont. C.A.):
No case is an island to be treated as if it were the only case with a legitimate demand on court resources. The system cannot revolve around any one case, but must try to accommodate the needs of all cases. When a case requires additional court resources the system cannot be expected to push other cases to the side and instantaneously provide those additional resources.
[72] Mr. Salloum in this application and previous submissions, Mr. Grill throughout and Leora Shemesh in her submissions wanted this case treated as if this case was an island, or that one lawyer be treated as an island - the only case and lawyer with legitimate demands on court resources. With other cases and counsel’s interests to be pushed aside so that this case and one lawyer were given priority. It is implicit in their arguments that there should be a guarantee this case will be tried in Brampton, regardless of the legitimate demands of all other cases scheduled in Brampton, regardless if there are several lengthy trials that are scheduled to be ongoing when this case is scheduled, regardless of whether this case requires a courtrooms that will accommodate three accused trial and regardless of the legitimate interests of all other accused and counsel. Upon what basis those guarantees would be given is not readily apparent.
[73] Dealing briefly with the bases noted in the factum but not raised in oral submissions, Mr. Salloum submitted that the questions posed to amicus were deliberately set to avoid the administrative law implications of the decisions. The reasonable informed member of the public would take time to learn what issues were raised in assessing the questions that were asked. The questions were in direct response to the issues Ms. Shemesh said would be argued. Her comments were made after a break during which I infer she consulted with Mr. Grill as Mr. Salloum was present and was constantly texting with Mr. Grill. The motions Ms. Shemesh described as Mr. Grill’s motions related to the court’s lack of jurisdiction to transfer cases, not the process and not to administrative law. It is not readily apparent how the court was to know about administrative law arguments in the absence of having a crystal ball.
[74] Ms. Shemesh raised the issue of the November 24, 2017 endorsement being issued without input from counsel. That submission was uninformed and misleading. There had been full submissions on Mr. Grill’s stated intention to argue the transfer issues at the start of the trial if he chose to do so – exercising his reserved rights. Counsel for the co-accused wanted me to re-visit a severance application I had just given oral reasons for dismissing. The arguments on that application had been made without any indication of Mr. Grill’s plan to seek to be removed from the record if he did not get his way regarding the location of the trial.
[75] Finally, with regards to that endorsement, Mr. Salloum described its contents as sternly worded in his factum. It was. For the reasonably informed member of the public he or she would know what occurred in court on the previous date, that Mr. Grill’s plan could put into jeopardy Prabhjeet Singh’s representation on the eve of trial and that Mr. Grill had decided he was not required to follow the directions of the Court.
[76] Knowledge of the criminal process would also include knowledge of a court’s jurisdiction to control the proceedings and counsel’s participation in proceedings from R. v. Cunningham, 2010 SCC 10, [2010] 1 S.C.R. 331:
[18] Superior courts possess inherent jurisdiction to ensure they can function as courts of law and fulfil their mandate to administer justice. Inherent jurisdiction includes the authority to control the process of the court, prevent abuses of process, and ensure the machinery of the court functions in an orderly and effective manner. As counsel are key actors in the administration of justice, the court has authority to exercise some control over counsel when necessary to protect its process.
In MacDonald Estate v. Martin, 1990 32 (SCC), [1990] 3 S.C.R. 1235, this Court confirmed that inherent jurisdiction includes the authority to remove counsel from a case when required to ensure a fair trial:
The courts, which have inherent jurisdiction to remove from the record solicitors who have a conflict of interest, are not bound to apply a code of ethics. Their jurisdiction stems from the fact that lawyers are officers of the court and their conduct in legal proceedings which may affect the administration of justice is subject to this supervisory jurisdiction.
[77] The reasonable informed person would also know of a Case Management Judge’s powers under the Criminal Code, including “establishing schedules and imposing deadlines:” s. 551.1 (1)(d).
[78] The reasonable informed member of the public would not conclude I had a closed mind to the issues to be litigated. The applicant has not me his onus.
[79] The application is dismissed.
DURNO, J.
Released: March 6, 2018
COURT FILE NO.: CR-16-1987-00
DATE: 2018 03 06
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
– and –
PRABHJEET SINGH, ABHIJEET NAGRA, and DILSHER SINGH
REASONS FOR DIMISSAL OF RECUSAL APPLICATION
DURNO J.
Released: March 6, 2018
[^1]: There were two severance applications raised by counsel for the co-accused in the course of the proceedings. The details of the applications are set out in the judgment noted earlier.