Court File and Parties

COURT FILE NO.: CR-15-50000131 DATE: 20180824 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – ANDREW MEDFORD Defendant/Applicant

COUNSEL: S. Shikhman, for the Applicant, Medford M. Bellmore, for the Respondent, Her Majesty the Queen

HEARD: June 25, 2018

MOLLOY J.

REASONS FOR DECISION

A. INTRODUCTION

[1] Counsel for the offender, Andrew Medford, asks me to find that my conviction of Mr. Medford on charges of assault, sexual assault, and various related offences was tainted by a reasonable apprehension of bias and further that my conduct following the conviction and in the course of a dangerous offender application also gives rise to a reasonable apprehension of bias. As such, defence counsel submits that I should recuse myself, declare a mistrial, and order a new trial.

[2] On February 5, 2016, I found Mr. Medford guilty of 14 offences and delivered oral reasons. Most of those offences related to violent sexual assaults on the same complainant (“J.B.”) on two separate dates. On each occasion, Mr. Medford video-recorded portions of his interactions with the complainant and those recordings were exhibits at trial. He testified that all his interactions with the complainant were consensual and that she was merely pretending to be the victim of assault for purposes of the video, which he recorded so that he could replay it himself (and others) later. The complainant’s version was diametrically opposed to that of the accused. She testified that she did not consent to any sexual interaction with Mr. Medford and did not even know that he was recording anything on the first occasion. Credibility was the central issue at trial.

[3] At the conclusion of the trial, I revoked Mr. Medford’s bail. The Crown initiated the process to have Mr. Medford declared a long-term or dangerous offender. There were many delays in that proceeding and the sentencing hearing itself did not start until April 3, 2018. After the completion of evidence on sentencing, but before final argument, defence counsel brought this motion.

[4] Ms. Shikhman, who was counsel for the offender at sentencing and on this motion, was not counsel at trial. On this motion, she relies upon the transcript of the trial proceedings and on the affidavit of Jeffrey Halberstadt, who was defence counsel at trial. The matters said to give rise to a reasonable apprehension of bias at trial are: (1) the expression on my face when watching a video of Mr. Medford forcing the complainant at knifepoint to perform fellatio on him; (2) the fact that I paused for only 40 seconds after the completion of oral argument before stating that I would be convicting Mr. Medford, rather than reserving my decision; (3) my statement at that time that I would be convicting Mr. Medford on “pretty much everything;” and (4) the fact that I revoked Mr. Medford’s bail allegedly on my own motion and without giving the defence an opportunity to make submissions.

[5] Further, Ms. Shikhman argues, based on the affidavit of her junior counsel, Brittany Smith, that there was a reasonable apprehension of bias during the dangerous offender application because: (1) I refused to permanently seal portions of the court record, instead requiring the defence to bring an application for such an order on notice to the media, thereby “interfering with an adversarial process;” (2) I unnecessarily excused the inappropriate behaviour of the complainant at the time she delivered her victim impact statement; and (3) I showed signs of frustration and impatience during Ms. Shikhman’s cross-examination of the Crown’s expert witness, psychiatrist Dr. Klassen.

[6] In retrospect, there is one thing that I wish I had done better: I wish that I had more effectively concealed my irritation with defence counsel during her cross-examination of the Crown’s expert witness at sentencing. However, this alone does not amount to a reasonable apprehension of bias against the accused. Having looked at all of the allegations as a whole, and in context, I find no basis for the application and I will not be recusing myself.

[7] I will deal first with the test to be applied in determining whether there is a reasonable apprehension of bias in these circumstances. I will then address the issues relating to the trial, followed by the publicity/privacy issue arising from counsels’ request to seal portions of the record, and finally the issues relating to the dangerous offender application.

B. THE TEST

[8] In Wewaykum Indian Band v. Canada, 2003 SCC 45, the Supreme Court of Canada stated, “ [s]imply put, public confidence in our legal system is rooted in the fundamental belief that those who adjudicate in law must always do so without bias or prejudice and must be perceived to do so.” [1] In that case, the Supreme Court of Canada adopted the definition of bias stated by Watt J. (as he then was) in R. v. Bertram:

. . . a leaning, inclination, bent or predisposition towards one side or another or a particular result. In its application to legal proceedings, it represents a predisposition to decide an issue or cause in a certain way which does not leave the judicial mind perfectly open to conviction. Bias is a condition or state of mind which sways judgment and renders a judicial officer unable to exercise his or her functions impartially in a particular case. [2]

[9] The oft-quoted test for apprehension of bias is set out in the Supreme Court of Canada’s decision in Committee for Justice and Liberty et al. v. National Energy Board et al. as follows:

. . . 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. In the words of the Court of Appeal, that 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]

[10] As noted by Clarke J. in R. v. Ibrahim, 2016 ONSC 7665, this is a two-pronged test. [4] Clarke J. adopted the following articulation of the test from Bertram:

It will be observed that the standard or test to be applied in cases where a reasonable apprehension of bias is alleged contains two objective elements. 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. [5]

[11] There is a strong presumption of judicial impartiality that is not easily displaced, which is why the test for reasonable apprehension of bias requires a real likelihood or probability of bias. [6] Abella J.A. (as she then was) described this principle as follows in Miglin v. Miglin (2001):

The principle [that the grounds for an apprehension of bias must be substantial] was adopted and amplified in R. v. S. (R.D.), [1997] 3 S.C.R. 484, 151 D.L.R. (4th) 193, 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] [Emphasis added]

[12] Trial judges should behave in a judicious manner and should avoid expressions of annoyance, impatience, and sarcasm. That said, isolated expressions of impatience or annoyance do not constitute bias, nor do they give rise to a reasonable apprehension of bias. As stated by the Ontario Court of Appeal in Chippewas of Mnjikaning First Nation v. Chiefs of Ontario, 2010 ONCA 47,

All of that said, appellate courts are reluctant to intervene on the basis that a trial judge “entered the arena” and improperly intervened in a trial. There is a strong presumption that judges have conducted themselves fairly and impartially. Isolated expressions of impatience or annoyance by a trial judge as a result of frustrations, particularly with counsel, do not of themselves create unfairness: see Kelly v. Palazzo (2008), 2008 ONCA 82, 89 O.R. (3d) 111 (C.A.), at paras. 20-21; R. v. Kitaitchik (2002), 66 C.C.C. (3d) 14 (Ont. C.A.), at paras. 12-14; and Confectionately Yours, Inc. (Re) (2000), 219 D.L.R. (4th) 72 (Ont. C.A.), at para. 28. Similarly, a trial judge’s willingness to debate with counsel openly over relevant factual and legal issues should not serve as a basis for a reasonable apprehension of bias. In the end, an appellate court should only intervene if satisfied that the trial judge’s interventions, considered in the context of the entire trial, created a reasonable apprehension that the trial judge was biased. [8] [Emphasis added]

[13] The burden is upon the moving party to establish an apprehension of bias on a balance of probabilities. [9] The burden is a heavy one and a mere suspicion or possibility of bias will not suffice. [10]

C. THE TRIAL

Facial Expression

[14] The defence alleges that I had a look of disgust on my face while watching a video of the “interaction between Mr. Medford and the complainant.” This is based solely on the affidavit of Jeffrey Halberstadt, who was defence counsel at trial. He stated in his affidavit that he “made observation of the Court and saw what appeared to [him] to be a very apparent look of disgust on Her Honour’s face,” noting as well that the video was played prior to Mr. Medford’s testimony.

[15] He then went on to state, “This reaction stood out in my mind because I have not witnessed such a reaction by a Court even in cases where video/images of child pornography had been played for a Judge.”

[16] My first comment is an obvious one – clearly the video had to be played before Mr. Medford testified, as it was part of the Crown’s case. In fact, it was played during the examination-in-chief of the complainant; she was asked to identify what was happening in the video and whether she was consenting to any of the activity shown.

[17] Second, I note that Mr. Halberstadt made no mention of any concern on his part about my neutrality, either during the trial, during his submissions, or subsequently in the 28 months since I delivered my decision in this case convicting Mr. Medford.

[18] Third, I point out that, in his closing submissions at the end of the trial, Mr. Halberstadt himself referred to the content of the video as being “very disturbing.” He stated:

I thank my friend for her very able submissions. I won’t be very long. The videos that we – we all saw, on their face, they’re obviously very disturbing. Even with an explanation, quite frankly, the videos are very disturbing. [Emphasis added]

[19] I turn then to the substance of the argument on this point. There were in fact two videos. I convicted Mr. Medford of sexually assaulting J.B. on two separate occasions: the first in October 2013 and then the second on November 24, 2013. On both occasions, Mr. Medford video recorded part of the assault on his cell phone. The complainant was aware he was recording her on the second occasion, but not the first.

[20] The affidavit of Mr. Halberstadt refers only to “the video,” so it is not possible for me to determine which of the two videos I am said to have reacted to. I will say, however, that both were repellent. The videos depict a woman, who appears to be terrified, being forced to suck on Mr. Medford’s penis while she is choking and gagging. In one of them, the knife being held to her face is visible. In my view, any human being with a drop of compassion for another person’s suffering would have found those videos to be distasteful.

[21] Before the first video was shown, J.B. testified about Mr. Medford’s actions on the occasion of the first assault in October 2013. The video was then played. In the video, the complainant repeatedly chokes and gags and is ordered to “put it in the whole way.” Multiple times, she says that she does not want to do it. J.B. testified that Mr. Medford did not have a weapon on this occasion, and no weapon is seen on the video. At one point while J.B. was watching the video, she stated, “That’s when he slapped me in the head.” The actual blow to the head cannot be seen on the video, but it can be heard.

[22] After the first video was shown, J.B. gave a detailed account of all of the assaults Mr. Medford committed on the following occasion on November 24, 2013. This time, Mr. Medford came armed with a knife. J.B. did not invite him in. Indeed, she tried to prevent him from entering, but he forced his way in, badly injuring her toe with the door, to the extent the toenail had to be removed at the hospital. Mr. Medford then committed various assaults on J.B., including: hitting her repeatedly in the face; choking her to the point of unconsciousness; repeatedly inserting the handle of a bathroom plunger into her vagina; inserting the handle of a Bic disposable razor into her anus; raping her vaginally; raping her anally; and, wounding her hand so severely that she required 13 stitches. He also again forced her to suck on his penis, this time while holding a knife to her face. Again, he video recorded the forced fellatio on his cell phone.

[23] The second video was played in court after J.B. had detailed these various assaults. It was more violent than the first video. Again, the complainant is choking and gagging and being ordered to continue. Mr. Medford also made her say repeatedly, “I’m a bitch that loves to suck dick,” and other words of a similar nature. She said “No” many times. In the video, the knife can be clearly seen. Also seen on the video is the bruising on J.B.’s face where she said Mr. Medford had punched her over and over.

[24] It may well be the case that I looked disgusted while watching one or both videos. They depict a terrified woman being demeaned and brutalized, at times with a knife to her face. In the second video, the bruising on her face from being punched is also visible. Obviously, it is not possible for me to see the expression on my own face, so I cannot comment on what it looked like, much less the emotion underlying it. That said, it is difficult for any person to accurately diagnose another person’s emotion by the expression on her face alone, particularly so when those two people are virtual strangers to each other. Perhaps I looked “disgusted” or “uncomfortable” or some such emotion. It is hard for me to say, particularly this long after the fact. [11] However, what I can say definitively is that the expression on my face had absolutely nothing to do with any ultimate conclusion I might reach as to the guilt or innocence of the accused in this case.

[25] The content of the videos is on its face disturbing, regardless of whether what is depicted is actual assaults or simulated ones. If the videos had in fact been fictional renderings by an actress playing the role of a battered victim being assaulted, I would still find them to be distasteful. There was no issue in this case about the actus reus. If what is being portrayed on the videos is real, the actions depicted are clearly sexual assaults. The central issue with respect to the videos was mens rea. Obviously, if the woman on the video was merely role-playing and not doing anything against her will, that would not be a criminal assault. I certainly understand the difference between these two concepts, as can be seen from my detailed reasons for decision.

[26] After 23 years as a trial judge in Toronto, there is not much horror I have not seen. I do not shirk from my responsibility to view such subject matter in the course of the trial process. Indeed, I have written in at least one decision, and I have stated when speaking at educational programs on this topic, that I often consider it essential to do so. [12] That does not mean it is a pleasant task to view such material, nor does it mean that the unpleasantness of the subject matter interferes at all with my ability to render a decision as to guilt or innocence based solely on the objective evidence and applying the proper legal test. One can be revulsed by photographs of a butchered murder victim, without losing sight of the requirement to be satisfied beyond a reasonable doubt as to the identity of the perpetrator. Likewise, one can be “disgusted” by images of sexual violence, without losing sight of the requirement to be satisfied beyond a reasonable doubt as to the guilty mind of the alleged perpetrator.

[27] In my view, it cannot be said that any emotional reaction Mr. Halberstadt detected on my part interfered with my ability to do my job as the trial judge. Apart from whatever expression Mr. Halberstadt saw on my face, I did not react in any way to the videos. I made no comments. I expressed no opinions. I watched them intently and in their totality. I made detailed notes as to what I was watching. And, I rendered a decision based on the evidence as a whole, again as can be seen from my reasons for that decision.

[28] I do not understand the relevance of Mr. Halberstadt’s comment that he has seen other judges look at child pornography with less reaction on their faces than he saw on mine – seeming to suggest that more horrific images have elicited less emotional reactions from decision makers. I vehemently reject the suggestion that there is a hierarchy of horrific images such that all persons will react on a sliding scale to the same images in the same manner and to the same degree. There are certainly images of things done to adults that I have seen and found more disturbing than some images of child pornography. It is distasteful to start ranking which kinds of horror are worse than others, which things judges are permitted to be disturbed by, and which things they are not.

[29] If what Mr. Halberstadt is suggesting is that other trial judges before whom he has appeared are better at concealing their reactions than I was that day, I expect he is probably right. I am not much of an actress, nor am I known to be a person whose face is completely unreadable. However, the question is not my acting ability nor my ability to hide my emotions effectively; the question is whether a judge should have such emotions at all. If a judge has a reaction of distaste for violent subject matter, is that judge incapable of judging a case fairly? The answer to that question must be a resounding “No.” Judges are human beings who will have the same range of emotions as other human beings, regardless of their role as impartial decision-maker or the fact that they have seen many horrible images to which the general public is not routinely exposed. Indeed, I would suggest that if there are judges who do not feel such emotions, or who have become indifferent to human suffering over time, those judges are less equipped to be fair and impartial than are their counterparts with common human emotions.

[30] Ms. Shikhman, in the course of her oral submissions on this motion, stated as follows:

. . . the video in and of itself is not an offence. It only becomes an offence if Your Honour accepts the evidence of the complainant and if Your Honour rejects and is not left in reasonable doubt by the evidence of my client. Otherwise, it is a video that two consensual adults engaged in. So the expression, the obvious apparent look of disgust is one that has a greater relevance in this case than it would in any case where you're watching either a murder scene or a child pornography or something of the kind that results -- that is clearly illegal.

THE COURT: Why is that?

MS. SHIKHMAN: Fair question. Why is that? Because at least that is, from the perspective of bias, that demonstrates a natural human reaction about the particular offence. If Your Honour has a disgust for S & M videos then you should not be sitting on this case. [Emphasis added]

[31] I reject that submission. The sexual preferences of a trial judge are neither a qualification nor a disqualification for any type of criminal trial. The issue is not whether I, as the trial judge, like or dislike S & M videos; the issue is whether this video is a depiction of consensual activity between two adults or whether it is a sexual assault. In that respect, this case was not dissimilar from the vast majority of sexual assault trials in which consent is the central contested issue. The subject matter of the video has nothing to do with that, nor does the sexual preference of the trial judge. As will be the case for virtually all trial judges, there have been many cases over the years in which I have found the perpetrator of a crime to be a sympathetic figure, sometimes even likeable, and nevertheless convicted him or her based on the evidence. Likewise, there have been many cases where I found an accused’s conduct and general character to be despicable, but nevertheless entered a verdict of Not Guilty, due to the evidence or lack thereof. I would expect that to be the experience of virtually every trial judge. This case was no different. The subject matter of the video, and whether I found that to be disturbing, are unrelated to whether I had a reasonable doubt as to the issue of consent based on the evidentiary record before me.

[32] Accordingly, I reject any suggestion that the expression on my face, betraying some human emotion for the plight of the woman apparently being assaulted on the videos, rendered me incapable of deciding this case impartially, based solely on the evidence, and without any bias towards the accused.

[33] This, of course, is not the test. The test is whether a reasonable person, knowledgeable as to the circumstances and the legal test to be applied, and having thought the matter through, would have a reasonable apprehension that I was not impartial and that I was biased against Mr. Medford. [13] I start with the following premises:

(a) A reasonable person would expect that judges have human emotions.

(b) A reasonable person would also expect that graphic depictions of violence against women would be disturbing to most people, and therefore could be disturbing to a trial judge.

(c) A reasonable person would expect that trial judges (and indeed jurors) would be able to set aside any subjective emotional reaction and make a decision based on the objective evidence and the applicable law.

[34] Once these fundamental premises are accepted, I consider it axiomatic that a reasonable person would not conclude merely from the appearance of a normal human emotion on the trial judge’s face, that the trial judge was likely biased against the accused and unable to render a fair decision. In my view, such an apprehension is unreasonable. The defence was unable to point to any case where an apprehension of bias was found to arise in anything even approaching the circumstances shown here.

Length of Time to Decide

[35] The evidence in this trial took just under two days to complete – February 1 and 2, 2016. On February 3, the lawyers for both parties made oral submissions. Everything turned on credibility. The oral submissions of the Crown comprise 31 ½ pages of the transcript. [14] Defence submissions cover 9½ pages of the transcript. [15] I asked both counsel some questions during the course of their argument. I agree with the submissions of the Crown on this recusal motion that it is apparent from the questions I asked that I was keeping an open mind throughout the argument. At the conclusion of counsels’ submissions, I paused and then stated that I would be convicting Mr. Medford on “pretty much everything” and that I would be providing oral reasons. I then addressed some specific questions to Mr. Halberstadt and to the Crown with respect to factual overlap between some of the counts and whether the principle in R. v. Kienapple applied. [16] I then advised that I would deliver my oral reasons for decision on February 5, 2016.

[36] Ms. Shikhman timed the pause from the close of Mr. Halberstadt’s submissions to when I stated I would be convicting Mr. Medford; she says it is 40 seconds. I accept that, although I did not verify it. Ms. Shikhman submits that 40 seconds is such an inadequate period of time to make a decision in this case that it constitutes grounds for a reasonable apprehension of bias. She submits that is particularly the case given that this was a credibility case and one that could potentially result in an indeterminate sentence.

[37] I should state at the outset that I had no idea at the time that the Crown would be seeking a designation of Dangerous Offender or Long-Term Offender and therefore an indeterminate sentence. However, that has no bearing on the decision of guilt or innocence, or on the length of time it took to make that decision. The ultimate sentence being sought was unknown to me, and irrelevant. However, a finding of guilt on charges such as these was obviously a serious matter, deserving of reflection.

[38] I am not aware of, nor was I referred to, any case in which a judge was criticized for delivering a decision immediately after the conclusion of the trial. Ms. Shikhman relied extensively on the directions given by trial judges to members of a jury that they should keep an open mind and not make any decisions until they have heard all of the evidence, the addresses of each counsel, and the instructions of the trial judge. Obviously, this was not a jury trial and those directions do not apply. However, I readily accept the obligation on a trial judge to keep an open mind.

[39] Ms. Shikhman also relied upon case law about the requirement of judges to provide reasons for their decisions. That case law is well-established, but also has no bearing on this case. I did provide detailed reasons, less than 48 hours later, and no issue is taken by either party with the adequacy of those reasons to explain the basis for my decision.

[40] Ms. Shikhman made the following submission, apparently by way of analogy:

On an issue of fact as Your Honour knows, the judge is entitled to be wrong. The Court of Appeal can often say I would come to a different conclusion but I don't believe that the trial judge has erred enough for me to interfere with that decision. So different people can disagree on the innocence of one person. That is our system and that's fine, but the only way that the society as a whole can have confidence in that system is if the judges who decide on that person's guilt or innocence give it the proper consideration. If the judges demonstrate, not just engage in justice, but demonstrate that justice is being manifest- -- manifestly being done, and that requires more than a 40 second reflection, Your Honour. As I was writing this factum, it was after the weekend and Ms. Smith asked me about plans, what happened on a Saturday night. I sat there reflecting to see how I can explain something that was meaningless, but it took me more than 40 seconds to reflect on what I thought of my Saturday night date though, because when you're engaging in factual analysis, weighing people's characters, weighing people's thoughts, weighing people's actions, that is no easy task, because human beings are complex, and while our immediate reaction may be one, upon looking at all the facts one is capable of coming to a different conclusion because all of a sudden the person can say, hmm, having heard some things, having thought about it something has greater importance than other things, than I originally thought.

[41] While I am hard pressed to see the relevance of this submission, it appears to be rooted in Ms. Shikhman’s belief that judges give no consideration to the evidence as it is being heard and that the 40 seconds after closing argument was my entire period of reflection about the merits of the case against Mr. Medford.

[42] Obviously, there is a duty on a trial judge to give parties a full opportunity to be heard before rendering a verdict against them. That does not mean that the trial judge is not permitted to think analytically about the evidence in the case or about the related legal issues before hearing from counsel at the end of the trial. That, frankly, is a ludicrous proposition. No trial judge sits with an empty mind as the evidence is heard. Sometimes after hearing and considering all of the evidence, there are few, if any, surprises in the oral submissions of counsel. On the other hand, sometimes counsel raise arguments or perspectives that the trial judge has not thought of and which require considerable further reflection.

[43] The latter situation was not the case before me. In this case, the evidence was brief and the issues were clear. There were no difficult legal issues. There was considerable corroborative evidence, as well as inconsistencies in evidence, which assisted in making credibility findings, both with respect to the testimony of the accused and the testimony of the complainant. After having heard the submissions of both counsel, it was crystal clear in my mind that Mr. Medford was guilty of the crimes with which he had been charged. I had no doubt whatsoever that he had committed the acts alleged against him. The only issue for me was whether the technical requirements of two of the offences had been met, and it was those two charges that required further reflection. I also formed the view that this was a completely fact-driven case that did not require written reasons. Rather, I proposed to sketch out a handwritten draft to assist in providing oral reasons for decision while the details were still fresh in my mind. Having reached that conclusion, I saw no reason not to share it with the parties.

[44] It is by no means uncommon for a trial judge to come to a speedy determination as to the outcome of a trial – particularly a single-issue trial of short duration. In this case, I called on both counsel to make submissions before I made a decision. I clearly wanted to hear what they had to say, and I asked questions of both counsel during their submissions. That said, I did not find this a difficult decision to reach. I mean no disrespect to counsel when I say that their submissions did not add much to the mix. Given the small amount of evidence and the clarity of the central issue, there was nothing surprising in either of their submissions.

[45] Contrary to the submissions of Ms. Shikhman, there is no requirement that a trial judge must reserve and deliver a decision at a later date. A failure to reserve a decision is not an indication that the trial judge did not fairly consider all of the evidence, and no reasonable person would apprehend that a trial judge was biased merely because he or she did not require any additional time after closing argument to make a decision.

[46] I can understand that a decision rendered quickly might cause the accused, or any reasonable person, to wonder if the trial judge fairly considered all of the evidence. However, the protection for the accused in that situation is in the reasons given by the trial judge, whereby the accused can see that the trial judge took the evidence into account, heard the submissions of counsel, and demonstrated the path by which the verdict was reached.

[47] In this case, I delivered detailed oral reasons on Friday morning, having completed the trial and submissions on Wednesday. The transcript of my reasons is 26 pages long. I explained at the outset how I applied the principles in R. v. W.D. I then dealt first with the charge of assaulting police at the time of arrest. I explained the reasons why I did not believe Mr. Medford’s testimony, and the reasons why I did believe the testimony of the officers. I then summarized the evidence of the complainant for approximately 3 ½ pages, followed by pages 8-18 of the transcript devoted to the evidence of Mr. Medford and the detailed reasons why I did not believe him. Among other things, I referred extensively to conflicts in Mr. Medford’s evidence at trial, inconsistencies in previous versions of the events he told to the police, admitted lies he told the police, the injuries to his body (which were inconsistent with his evidence as to the timing of when he got those injuries and his own cell phone records demonstrating that he had told his girlfriend prior to his arrest that he had been in a fight and was cut up all over), and discrepancies in his evidence about the purpose of the videos and what was actually on the videos. I then turned to the credibility of the complainant, recognizing at the outset some of the difficulties with her as a witness, and then analyzing (for approximately 5 pages) why I believed her evidence, with reference to much of the evidence I found to be corroborative of her testimony. Finally, I set out my conclusions. I convicted Mr. Medford of:

Count 1: sexual assault in October, 2013

Count 2: common assault in October, 2013 by choking

Count 3: break and enter on November 24, 2016

Count 4: assault by punching the complainant in the face

Count 5: assault with a weapon (ordering the complainant to strip while holding her at knifepoint)

Count 6: sexual assault with a weapon (the knife, as depicted on the video)

Count 7: sexual assault with a weapon (a plunger)

Count 8: sexual assault with a weapon (a disposable razor)

Count 9: choking to enable the commission of a sexual assault

Count 11: sexual assault (separate acts of assault involving anal penetration and assaults in the bathroom other than with the foreign objects)

Count 12: threatening to cause bodily harm

Count 14: aggravated assault (wounding the complainant’s hand with a knife)

Count 15: assaulting a police officer

[48] Under Count 10, Mr. Medford was charged with aggravated sexual assault based on wounding. The Crown relied in this regard on cuts to the complainant’s throat which I found to be too superficial to constitute wounding. I therefore found Mr. Medford guilty only of the lesser included offence of sexual assault causing bodily harm.

[49] Under Count 13, Mr. Medford was charged with unlawful confinement. I held that there was no confinement other than that which was necessary to commit the other offences and that confinement was thus subsumed within those other offences. I therefore stayed this charge pursuant to R. v. Kienapple.

[50] In my view, my reasons demonstrate that I paid close attention to the evidence and made my decision based on that evidence. I gave thorough reasons that would enable Mr. Medford (and anyone else) to know precisely why I did not believe him and why I was convinced of his guilt of these offences beyond a reasonable doubt.

[51] Ms. Shikhman argued that there was no time imperative at play because a full week had been set aside for this trial, and it had taken less than three full days to complete. This, she said, supported the argument that there was lots of time available to make a decision and I ought, therefore, to have taken that time to reflect.

[52] That submission betrays a complete lack of understanding as to the reality of the time pressures on a superior court criminal trial judge sitting in Toronto. Like virtually every trial judge on our Court, I was juggling multiple reserved judgments with a sitting schedule on the long trial team that did not include scheduled time to work on those reserves. I was hearing this particular case against Mr. Medford only because I had completed other trials and my next scheduled long trial was yet to begin. I was helping out on the regular criminal list – as is the practice on our Court – so as to respect the right of all accused persons to a timely trial.

[53] Time is a precious commodity. A busy trial judge cannot afford to reserve a decision merely for the sake of appearances. If I am able to make a decision quickly, I do so. That approach ensures that when a case comes along that needs considerably more time for reflection, I have the time available to do so. [17] Moreover, this approach avoids unnecessary delay for the accused to be informed of the outcome of his or her trial. That does not mean that there is a “rush to judgment” because of time pressures. It merely means that when extra time is required, I take it; but when extra time is not required, I do not waste time by reserving my decision unnecessarily. I only deliver an immediate decision when I am absolutely certain as to that decision, and I most certainly do not do so without thinking about it. Sometimes I can deliver reasons for an immediate decision on the spot. Other times, I deliver the reasons later. This is not an uncommon practice for trial judges, as has been acknowledged in the case law. [18]

[54] In determining whether the 40-second pause on Wednesday afternoon prior to announcing my verdict constituted evidence of bias, a reasonable person is required to consider the entire context. A reasonable person would recognize that the trial was short and the submissions of counsel were brief. Further, that reasonable person would have regard to the reasons I provided on Friday morning. In my view, those reasons demonstrate that I was reflective; I based my decision on the evidence; I did not disregard the submissions of counsel; and I did not harbor any bias for the complainant or against the accused. Further, I can see no basis upon which a reasonable person knowing all of these facts could have a reasonable apprehension of bias.

Use of the Words “Pretty Much Everything”

[55] In her written factum, Ms. Shikhman took issue with my statement that I would be convicting Mr. Medford of “pretty much everything,” before posing questions to counsel about lesser included offences and bail. She submitted that this was evidence that made it appear that I believed that “Mr. Medford is just a bad man who is guilty of pretty much everything and is not deserving of the careful explanation as to what he is actually being convicted of.”

[56] With the greatest of respect, in my view, no reasonable person would come to that conclusion based on those words, particularly not when seen in context. Immediately after that statement, I raised the issue of the lesser included offence for aggravated sexual assault and whether the facts on unlawful confinement were sufficiently separate to warrant a conviction on that count. Those issues were raised by me, were issues that benefitted Mr. Medford’s case, and were issues upon which I ultimately accepted the submissions of Mr. Halberstadt (Mr. Medford’s counsel).

[57] I fail to see how this statement by me supports the defence’s bias argument when seen in context and against the reasons for decision I delivered shortly thereafter. Since this point was not pressed in oral argument, I will say nothing further.

Revocation of Bail

[58] The defence submitted that I revoked Mr. Medford’s bail on my own motion after hearing only from the Crown and without giving defence counsel an opportunity to make submissions. This is proffered as a further example supporting the argument that there is a reasonable apprehension I was biased against Mr. Medford. Ms. Shikhman described it as follows in her factum:

The Trial Judge’s violation of procedural fairness in revoking the defendant’s bail without so much as submissions by defence counsel. The Trial Judge appeared impartial (sic) by raising the issue of bail on her own motion.

[59] I take exception to this characterization of what happened. In fact, I raised the issue of bail first with defence counsel. I inquired about whether there was a criminal record and what the conditions of bail were at that time. I alerted defence counsel to my concern that circumstances change upon a conviction of such violent offences as these and that I was “not sure that it’s appropriate for [Mr. Medford] to still be on bail between [then] and Friday” (when I would be delivering my reasons). Mr. Halberstadt made the submissions he felt appropriate, including that: (1) Mr. Medford had no criminal record; (2) Mr. Medford had been on release for a lengthy period of time; (3) there had been no allegation of any breach of recognizance; and (4) the terms of the release were very strict. I then heard from Crown counsel, and was advised for the first time that the Crown was considering a Dangerous Offender/Long Term Offender application. Following these submissions, I decided to revoke Mr. Medford’s bail.

[60] It was within my jurisdiction to consider whether continued bail was appropriate in all the circumstances. [19] Mr. Medford no longer had the benefit of the presumption of innocence. Given the nature of the offences upon which I convicted him, he would not be eligible for any disposition that did not involve incarceration. His crimes included a disturbing level of violence including threatening further violence towards the complainant and also her daughter. Protection of the public required a reconsideration of bail in these circumstances.

[61] There was no breach of natural justice or procedural fairness. There was simply a decision to revoke bail after hearing submissions. Defence counsel was given a full opportunity to make submissions. He did not seek to call evidence or to make any further submissions. Moreover, my decision revoking bail has never been challenged. Defence counsel, if he saw fit, could have revisited the issue on Friday, February 5, 2016 when he reappeared before me. He did not. He could have brought an application any time thereafter. He did not. Ms. Shikhman, when she was later retained, could also have done so. Once again, she did not.

[62] In all of these circumstances, I reject the argument that merely raising the question of bail gave rise to a reasonable apprehension of bias. A reasonable and informed person would expect that upon being convicted of crimes with the underlying brutality shown here, there would be at least a consideration of whether the accused should be detained in custody pending sentencing.

D. THE PUBLICATION BAN

[63] The pre-sentence report in this case contained a reference to some medical issues, revealed to the author of the report by Mr. Medford. Those issues were private and not relevant to the pre-sentence report. I agreed readily that the irrelevant portion of the pre-sentence report should be excised before the report was made an exhibit at the sentencing hearing.

[64] Both counsel then proposed to excise portions of the report of Dr. Klassen on the same basis, but to sign an agreed statement of fact that would acknowledge the impact of the medical issues for certain purposes. I raised some practical questions about how this could be accomplished, to which Ms. Shikhman responded that the reason for doing it this way was to keep Mr. Medford’s personal medical issues out of the newspapers. Ultimately, I held that an application would have to be brought for a publication ban, on notice to the media.

[65] In her factum on this motion, Ms. Shikhman submitted this was an event demonstrating bias, describing it as follows:

Trial Judge’s prioritization of the right of the press and the public’s right to know about [Mr. Medford’s] Medical issues. Despite the agreement between the defence and the Crown to omit it. Interfering with the adversarial process. (sic)

[66] This is a mischaracterization of what actually happened. I clearly did not “prioritize” the right of the press and the right of the public to know over Mr. Medford’s right to privacy. I merely identified that there was an issue as to how those competing interests should be balanced, and that a motion would need to be brought. Further, I proposed sealing the relevant materials in the meantime – and did so – so as to protect Mr. Medford’s privacy rights until the motion could be heard. I made no other decision on this issue.

[67] The public nature of a trial cannot be circumvented merely by the consent of counsel. The trial judge has an obligation to ensure that court proceedings are conducted in an open manner. The public, represented by the press, is entitled to be present and to have access to all material that is part of the public record, absent a ruling to the contrary based on established legal principles. [20] It is the trial judge who makes that decision, not counsel. Refusing to go along with an agreement between counsel to keep information from the public is not interference with the adversary process; it is protection of a constitutional principle I am bound to uphold.

[68] On the argument of the recusal motion, Ms. Shikhman stated that she was no longer relying on the non-publication issue as evidence of bias. However, I consider it important to deal with the issue for a number of reasons. First, the argument was advanced in the defence factum. Second, it was addressed in the Crown’s factum. Third, although Ms. Shikhman did not specifically mention it in her initial oral submissions on this motion, neither did she withdraw it. Fourth, it was dealt with by the Crown in her oral submissions in response to the defence motion. Fifth, it was only in reply that Ms. Shikhman stated for the first time that she was not relying on this point as evidence of bias. However, she stated at the same time that it was this issue that was the beginning of her concern about bias, because of my “failure to protect” Mr. Medford. Sixth, in my view, Ms. Shikhman’s tone and comments when dealing with this issue before me on April 3, 2018 set the stage for what followed. Thus, while Ms. Shikhman has seemingly abandoned the non-publication issue as evidence of bias, it is worth addressing it now in order to later understand the context in which the other allegations of bias at the sentencing hearing occurred.

[69] During the sentencing hearing on April 3, 2018, the issue of redactions beyond the presentence report was initially raised by Crown counsel, who stated that she and Ms. Shikhman were in the process of finalizing an agreed statement of facts on the medical issue and its impact, and that all other references in the court record, including the report and evidence of Dr. Klassen, would be redacted. This was before Dr. Klassen was called as a witness. His testimony was to be heard on April 4 and 5, 2018. I asked why counsel were taking the position that this issue should not be spoken of on the record. That was when Ms. Shikhman provided the explanation that the basis for this procedure was to keep the issue out of the newspapers. She further stated that this was a personal issue solely for Mr. Medford and that although the Crown was consenting, it was not the Crown’s “right to consent.”

[70] I agreed that it was not up to the Crown and stated it would be up to me. Dr. Klassen was not merely a witness being called by the Crown. He had been directed to conduct an examination and prepare a report and he did so, addressing that report to me, as was appropriate. It is not up to counsel to simply remove portions of a report prepared for and submitted to the Court.

[71] I asked Ms. Shikhman, “It’s relevant and it should be on the public record, should it not?” Ms. Shikhman stated, “Well, then, if that’s Your Honour’s view. I don’t see that as relevant.” I suggested to her that by conceding a point and putting it in an agreed statement of fact to be filed on the sentencing hearing, she was in effect conceding relevance. I then indicated that there was a difference between removing something from the presentence report (which was merely something Mr. Medford had told its author) and effectively muzzling a psychiatrist who clearly in his report considered this factor to be relevant. I also raised what I was to do in my reasons if I found the issue to be relevant. Ms. Shikhman then responded:

So I think, Your Honour, we’re now getting into again there are two questions. The question of relevance, and I heard your Honour on it. You essentially ruled on it.

[72] I replied that I had not ruled on it, but merely noted that Dr. Klassen seemed to consider it relevant and the fact that the defence was prepared to concede the point suggested to me that she also considered it relevant. I then stated, “If you’re telling me you don’t think it’s relevant then we’ll have to have argument on it.” The following exchange then occurred:

MS. SHIKHMAN: There’s obviously some relevance. The relevance is a fluid concept with respect to probative versus prejudicial effect, but let’s suppose for a second that it is relevant, and I’ve heard Your Honour’s comments. I don’t think I can persuade you otherwise, so let’s leave that. That’s one issue.

THE COURT: Well, that’s an offensive statement, frankly.

MS. SHIKHMAN: No, no, no, Your Honour, not (indiscernible). I didn’t mean it that way. What I meant was I think relevance is an easier concept. It’s not something that requires legal argument. One, a jurist either sees the relevance or not and that’s really the end of that argument, but leaving that aside for a moment I really didn’t mean it that way. I know I have a way of speaking that may come across and I promise you I didn’t mean that.

THE COURT: Okay.

[73] Ms. Shikhman then abandoned her argument as to relevance and agreed that on the publication ban issue it would be necessary for her to bring a motion on notice to the media. I indicated I would make a temporary sealing order with respect to Dr. Klassen’s report until she could bring the application. Dr. Klassen testified in chief on April 4, 2018 and was cross-examined on April 5, 2018. There were no observers in the courtroom, so it was not necessary to make an order excluding the public. I directed that nobody could obtain a transcript of Dr. Klassen’s testimony without my consent, pending further order of the court once the non-publication motion was heard. I then adjourned the matter to May 17, 2018, that date having been agreed to by both counsel for final argument on the sentencing hearing and for argument on the defence application for a non-publication order.

[74] On May 11, 2018, Ms. Shikhman brought the matter forward, indicating on the record that she would be bringing this recusal motion and seeking an adjournment for that purpose. She had not, by that time, filed any material with respect to the publication ban. I adjourned the recusal application to June 25, 2018, directed that the material for the publication ban be returnable for that same date, and extended the temporary non-publication order to June 27, 2018.

[75] Although Ms. Shikhman persistently stated on the record that I had already decided the issue of relevance, I repeatedly told her I had not. I am perplexed by Ms. Shikhman’s position that relevance is a simple matter not requiring legal submissions and capable of being decided almost without analysis by the trial judge. That has not been my experience generally, nor with respect to the medical issues involving Mr. Medford in this case.

[76] Throughout the hearing in my dealing with this issue, I was careful to protect Mr. Medford’s privacy interest pending a hearing on proper notice to the media. Indeed, on the return of the publication ban application, when I discovered Ms. Shikhman had placed in the public court file her full unredacted materials disclosing all of Mr. Medford’s private medical details, I alerted her to that fact, personally removed the material from the file, and kept it in my office until a proper redacted record and sealing order had been prepared. It is simply not the case that I failed to protect Mr. Medford’s interests, as suggested by Ms. Shikhman.

[77] Ms. Shikhman now concedes that there was nothing about my handling of the publication ban that could be considered biased or giving rise to a reasonable apprehension of bias. Nevertheless, by her own admission, it was this exchange that caused her to consider that I had been unfair to her client. Whether she intends to or not, Ms. Shikhman by her attitude and posturing in the courtroom comes across as disrespectfully aggressive and confrontational. This exchange was but one example which, in my view, sets the context for what followed at the sentencing hearing.

E. THE SENTENCING HEARING: ADDITIONAL ALLEGATIONS OF BIAS

The Complainant’s Gesture

[78] The complainant read her Victim Impact Statement at the sentencing hearing on April 3, 2018. On her way out of the courtroom, the complainant apparently gestured towards the accused with the middle finger of one hand extended. I was not watching her leave and did not see the gesture. Ms. Shikhman drew my attention to it. The entire exchange on this issue is as follows:

MS. SHIKHMAN: I just want it stated for the record, unfortunately I have to, as the victim walked out of the – was walking out of the courtroom before she crossed the bar area she turned and gave a finger, middle finger to my client. For whatever that’s worth, whatever value it has, I feel obligated that it be placed on the record.

THE COURT: She’s angry.

MS. SHIKHMAN: And that’s – and that’s fine, but as Your Honour is aware, Mr. Medford has expressed certain feelings about – and it’s important that it be noted, thank you.

THE COURT: I have no problem with you noting it.

[79] In her factum, Ms. Shikhman cited this exchange as an event giving rise to a reasonable apprehension of bias, describing it as “[t]he Trial Judge’s unnecessarily [sic] excusal of the inappropriate behavior of the complainant.”

[80] Ms. Shikhman provided no explanation as to what she now believes I should have done about this “inappropriate” gesture by the complainant, nor did she ask me to do anything about it at the time. My comment that the complainant was angry was merely a statement of the obvious, not an “excusal” of inappropriate conduct.

[81] In my reasons for decision on February 5, 2016, I specifically dealt with the complainant’s anger and its impact on my findings of credibility. I stated:

Ms. S was not an easy witness. She was angry. She was combative. Instead of answering questions directly, she went on the attack. She frequently cut questions off in both examination-in-chief and cross-examination. She used extremely foul language at times. [21]

[82] Given the complainant’s demeanour at trial, it was not surprising to me that she would have used the gesture described by Ms. Shikhman. As I said at the time, she was angry. That said, she has lots to be angry about, as I set out in my reasons for conviction. To give Ms. Shikhman the benefit of the doubt, she was not counsel at trial and perhaps did not have that background.

[83] In any event, I fail to see how my repeated comment that the complainant was angry can possibly amount to evidence of bias. Nor do I see that it was necessary, or even appropriate, for me to have done anything about this particular incident.

Denigration of Counsel and Irritation

[84] Ms. Shikhman asserts that during her cross-examination of Dr. Klassen, I denigrated her competence as counsel and so disrupted her cross-examination that my conduct would be apprehended by a reasonable person as demonstrating bias.

[85] Ms. Shikhman relies in that regard on the affidavit of her junior counsel, Brittany Smith, who is an associate with the law firm Bytensky Prutschi Shikhman. The substance of the affidavit is set out below.

(a) The cross-examination began shortly after 10:00 am and concluded around 1:00 pm.

(b) Approximately half an hour into the cross-examination, “Her Honour exhibited what appeared to me were obvious signs of frustration including eye rolling, audible sighing, and, finally, tossing of her writing instrument.”

(c) At that point Ms. Shikhman asked for the witness to step out and addressed the Court on the matter.

(d) Afterwards, after a discussion with Ms. Shikhman, Ms. Smith “was paying close attention to Her Honour’s tone” and “it appeared to [her] to be even more frustrated.”

(e) At the end of the re-examination, Dr. Klassen “responded with a pithy comment, which was obviously meant to diminish the value of a line of questions asked by Ms. Shikhman.”

(f) Her Honour responded “with a smile and a laugh under her breath, signaling her condonation of Dr. Klassen’s behavior.”

[86] It is not entirely accurate to say that the cross-examination started shortly after 10:00 a.m. and continued until approximately 1:00 p.m. It both started later and finished later, with a significant gap in the middle. This is important as it speaks to the context in which the alleged incidents of bias occurred.

[87] Dr. Klassen was examined in chief on the morning of April 4, 2018. It was anticipated that the examination-in-chief would be completed that morning. I had agreed, with the consent of both counsel, that we would not sit on the following afternoon of April 5, 2018 in order to permit Crown counsel to attend the funeral of a close friend and colleague. In addition, Dr. Klassen had previously indicated that he had important meetings scheduled for the afternoon of April 4, 2018 which he was reluctant to miss. Ms. Shikhman requested that we not sit for the afternoon of April 4, 2018. She advised that she would use that time to prepare for the cross-examination and, in particular, to consult with Dr. Gojer (an expert forensic psychiatrist who was assisting the defence, although not being called as a witness). I agreed, with some reluctance, to take the afternoon of April 4, 2018 off. However, because I was concerned about providing enough time for Ms. Shikhman to cross-examine Dr. Klassen and still permit Crown counsel to get to the funeral, I directed all parties to come to court on April 5, 2018 at 9:30 a.m., rather than 10:00 a.m. I had another matter to be spoken to briefly at 9:30 a.m., and indicated I would start with the cross-examination of Dr. Klassen immediately afterwards.

[88] At 9:30 a.m. on Thursday April 5, 2018 everyone except Ms. Shikhman was present. Crown counsel advised that she had heard from Ms. Shikhman that she was running late and that she expected to be there by 10:15 a.m., but that she would be able to complete her cross-examination in any event by 12:30. By 9:45 a.m., I was ready to start this case, but Ms. Shikhman still had not arrived. Court reopened when Ms. Shikhman arrived at 10:17 a.m. She provided the following explanation for her tardiness:

MS. SHIKHMAN: Good morning, Your Honour. I apologize. Apparently you're supposed to turn the... I'm so sorry. It was on silent and I didn't turn the alarm back on. I apologize.

I responded, “That’s okay.”

[89] Ms. Shikhman then stated that she had actually been there for 10 or 15 minutes and had been reviewing Dr. Klassen’s notes, which she had asked him to provide just the previous day, but which he had only delivered that morning. The following exchange occurred:

MS. SHIKHMAN: Your Honour, part of -- the other reason, we've been here for about 10, 15 minutes. Part of the other reason that we've sort of been a little bit delayed is because I'm frantically going over the notes of Dr. Klassen which I asked him to e-mail to the Crown and to myself yesterday so that I could prepare for the cross-examination. He did not. He brought it here with him this morning however upon arrival, so I'm going through that right now. I don't believe I have a lot of questions so I can start with Dr. Klassen. I may need about a 10 minute break just to clarify something in his notes that he provided today.

THE COURT: Okay.

MS. SHIKHMAN: With your permission.

THE COURT: Sure.

MS. SHIKHMAN: Thank you.

[90] Her cross-examination of Dr. Klassen then began.

[91] Dr. Klassen’s report was extensive, comprising 32 pages. It had been delivered on January 8, 2017. His examination-in-chief took approximately half a day, on April 4, 2018. In his report, Dr. Klassen referred to various testing that was done on Mr. Medford, including phallometric testing and three actuarial instruments used to predict risk: the SORAG (Sexual Offender Risk Appraisal Guide), Static-99R, and the PCL-R (Psychopathy Checklist Revised). Dr. Klassen testified, and stated in his report, that these statistical instruments have been shown to be better predictors of the risk of reoffending than the subjective judgment of professionals. In chief, he testified that the PCL-R, as a stand-alone, is not a good predictor of sexual reoffending, but could be helpful for risk management and treatment. There are 20 categories and the subject can be rated as either 0, 1, or 2 in each category, such that the highest possible score would be 40. Dr. Klassen scored Mr. Medford as 22. This placed him at the 48th percentile of offenders. His score on the Static 99R placed him at the 89th percentile of sex offenders and his score on the SORAG placed him at the 60th percentile. Based on the actuarial tests, Dr. Klassen put Mr. Medford at a “moderately high” risk of reoffending.

[92] Ms. Shikhman’s cross-examination started with the PCL-R score of 22 given by Dr. Klassen. She stated that she counted the score as 21 and asked him to explain the score of 22. Dr. Klassen explained that he had omitted item 19 (violation of a judicial release order), such that Mr. Medford’s score was 21 out of 39 rather than 40, which was then prorated, resulting in a score of 22. He said this was required by the PCL-R manual when there was no prior adult criminal record antecedent to the subject offence, but he could not remember the precise language of the manual and had not brought it with him. Ms. Shikhman then asked, “Where do I find this manual?” Dr. Klassen replied that she could either purchase it or borrow it from somebody. I note, as I indeed recalled at the time of the cross-examination, that Dr. Klassen’s report clearly indicated that 22 was a pro-rated score. [22] This, in my view, should not have been a surprise to counsel.

[93] Ms. Shikhman then proceeded to cross-examine Dr. Klassen about two other scores he had assigned to Mr. Medford on the PCL-R test: one relating to grandiose personality (which Dr. Klassen scored as 1) and the other relating to criminal versatility (upon which Dr. Klassen scored him as 2). Ms. Shikhman challenged Dr. Klassen on the criminal versatility score, stating, “So and it’s your evidence is that according to the PCL-R manual, it’s irrelevant that they’re all in the context of mostly – mostly in the context of one offence.” The Crown objected at this point, stating that this was an unfair question given the number of separate incidents and offences with which Mr. Medford had been charged. Before I had a chance to say a word, Ms. Shikhman responded in what I considered to be an unreasonably aggressive manner:

MS. SHIKHMAN: I’m sure Dr. Klassen can verify himself, but thank you. I will try to make sure to rephrase the question.

[94] Dr. Klassen then answered the question as follows:

DR. KLASSEN: Yeah, the manual does not specify whether you derive the charges or convictions from one offence or how many offences, it simply says count the number of charges or convictions and score.

[95] Ms. Shikhman then asked, again in what I considered to be an unduly aggressive tone, while posturing and waving her arm, “Do you as the professional have to use a little bit of common sense?” Although the transcript merely shows Dr. Klassen’s response as “Sure,” it was apparent that he also was taken aback by the posturing adopted by Ms. Shikhman. It was at this point that I put down my pen. I did not “toss” my pen as suggested; I put it down in a pointed manner, immediately beside my Bench Book. Ms. Shikhman then asked to have Dr. Klassen excluded from the courtroom so that she could address me on the point. This was at page 11 of the transcript. Ms. Shikhman made the following submission:

MS. SHIKHMAN: Your Honour, I don’t want to play the back and forth blame game. I got a bunch of things that I should have gotten or should have asked – should I have figured out that he probably has more things than asked for, of course, but can I ask Your Honour, Mr. Medford has a lot – and I can see Mr. Medford has a lot on the line. I can see Your Honour is a little frustrated on my questions because it’s blatantly obvious. Can I ask Your Honour to give me a moment and – because the frustration is making it much more difficult.

[96] I cannot pretend to understand what that submission meant, and in particular what the reference to “playing the back and forth blame game” was about. At that point, I had not uttered a single word since the start of the cross-examination, which I pointed out to Ms. Shikhman. I told her that all I had done was put down my pen and that “good counsel watch when a judge puts down the pen” because it is a signal that this line of examination is not helpful. I particularly noted that I found her tone to be offensive when she suggested Dr. Klassen should use common sense to which she replied, “Okay. And I will change my tone.” I also pointed out that the PCL-R was meant to be an objective instrument with rules to be followed in the scoring, rather than having the psychiatrist apply common sense, and it therefore is not helpful to cross-examine Dr. Klassen on the basis that he should not follow those rules. Ms. Shikhman responded that the PCL-R provided no guidance on this point, which was contrary to the evidence of Dr. Klassen. It was also inconsistent with her own earlier admission that she was so unfamiliar with the manual that she did not even know where she could obtain a copy. She again conceded that she had not read the PCL-R manual and I told her in that case, she should stop telling me what was in it. In fairness, I will acknowledge that I was somewhat exasperated at that point, and I have no doubt that was apparent from my voice.

[97] However, this entire exchange occupied three pages of transcript, and then it was done. The cross-examination then resumed and continued until 11:23 a.m., during which time I said nothing other than one question to seek clarification as to the meaning of an abbreviation used by Dr. Klassen in his notes. At 11:23 a.m., Ms. Shikhman requested that we take a brief recess, stating that she did not think that she would have more questions but wanted to go over a few points. I stated only that we would take a 20-minute recess.

[98] When court reopened at 11:53 a.m., Ms. Shikhman asked for more time, as she was waiting to hear from Dr. Gojer on one point. She said she expected this would take 20 minutes, and that in any event she would be finished her cross-examination by 1:00 p.m. Again, I readily agreed and indicated we would resume whenever she was ready. That turned out to be 12:34 p.m. The short recess requested at 11:23 p.m. had stretched to over an hour. Although I said nothing to counsel at the time, I confess I found this delay irritating, given that defence counsel had Dr. Klassen’s report for well over a year and there was nothing in Dr. Klassen’s evidence-in-chief or cross-examination that was different from his report or that, in my view, should have been a surprise to counsel.

[99] Over the break, Ms. Shikhman had acquired at least some portions of the PCL-R manual in an electronic form, which she proceeded to put to Dr. Klassen. She started with the point on which she had started her cross-examination – the fact that Dr. Klassen had omitted the category based on violation of a conditional release and therefore prorated Mr. Medford’s score, such that it became 22 instead of 21. The manual provided that this item should be omitted if the subject had not had “formal contact with the criminal justice system as an adult prior to the current offences.” Ms. Shikhman told Dr. Klassen (incorrectly) that Mr. Medford had previously been on bail for a prior sexual assault and not breached that bail, based on which Dr. Klassen agreed that he would score Mr. Medford at zero for this item, with the result that his final score would be 21, rather than 22.

[100] I knew at the time that Ms. Shikhman’s statement was incorrect. The other sexual assault charge (for which Mr. Medford had been charged and convicted) was not a prior interaction with the justice system. It related to an assault that was two years before the assaults in the current charges; however, Mr. Medford was not identified at the time and was only arrested and charged in respect of that sexual assault after he had been arrested on the current charges. This information was in Dr. Klassen’s report, so he also realized it at the time of preparing his report, but did not recall it until it was drawn to his attention on re-examination.

[101] Ms. Shikhman then continued to cross-examine Dr. Klassen with respect to other aspects of his PCL-R scoring, concluding at 1:07 p.m. Re-examination by the Crown covered four pages of transcript, the vast majority of which was clarifying the error by defence counsel with respect to there being no prior contact as an adult with the criminal justice system at the time of the current charges, which is why the category about violating a conditional release was required to be omitted. Given that Crown counsel corrected Ms. Shikhman’s error, it was not necessary for me to intervene, and I did not.

[102] From the end of my discussion with Ms. Shikhman about my putting down my pen (at page 15 of the transcript) to the conclusion of her cross-examination (at page 55 of the transcript), there are only two occasions when I spoke at all: the first was to clarify an abbreviation used by Dr. Klassen in his notes; the second was to respond to an objection by Ms. Shikhman. On the latter occasion, Ms. Shikhman had asked Dr. Klassen a question about Mr. Medford’s receipt of disability benefits and Dr. Klassen referred to that disability in his response. Ms. Shikhman objected to this and I responded that I had not ruled that Dr. Klassen could not refer to the disability in his evidence, but rather that nobody could order a transcript of his evidence without my consent, at which point any necessary redactions would be considered. In her affidavit, Ms. Smith stated that she was playing close attention to my “tone” after my earlier discussion with Ms. Shikhman and that it appeared to her that I was “even more frustrated.” I have no understanding as to how that could be the case given that I said virtually nothing. However, it is certainly not the case that I did anything to interfere with or disrupt Ms. Shikhman’s cross-examination.

[103] The Crown concluded her re-examination by asking Dr. Klassen whether the opinion in his report would change if the Court accepted that the proper score on the PCL-R was 21 rather than 22. To this he responded:

Rarely has so much effort been put into something of such marginal import to the overall outcome. I would submit to you I indicated at the outset there is no statistically significant difference between scores that are less than three points apart.

[104] According to the Smith affidavit, this comment by Dr. Klassen “was obviously meant to diminish the value of a line of questions asked by Ms. Shikhman.” Ms. Smith went on to comment that “Her Honour reacted with a smile and a laugh under her breath, signaling her condonation of Dr. Klassen’s behavior.”

[105] Prior to this response, Dr. Klassen had already explained the margin of error and had indicated that a change of three points in the score would make no difference to the classification of risk. His response obviously did diminish the value of the line of questions asked by Ms. Shikhman, but only because the degree of variation she was struggling to prove was statistically irrelevant. Also, Ms. Shikhman had her underlying facts wrong.

[106] I do not dispute that I may have smiled at Dr. Klassen’s remark, or perhaps laughed inaudibly as suggested, as I did find it amusing. There is no seasoned trial counsel that has not experienced repeatedly beating her head against a brick wall trying to get somewhere with a witness, and nevertheless getting nowhere. By smiling, I was doing no more than acknowledging that.

[107] In addition, I saw no problem whatsoever with Dr. Klassen’s conduct. He was courteous and patient with Ms. Shikhman throughout. His demeanour was professional. He never once lost his cool or raised his voice. I could understand that he may have been frustrated by what turned out to be a futile line of cross-examination. I took his remark as meaning nothing more than that, and in my view, any reasonable, properly informed person would have a similar reaction.

[108] Ms. Shikhman’s contention that I denigrated her competence as counsel is apparently based on my statement that “good counsel” watch the judge’s pen. This is a well-known principle, and one that is frequently mentioned by instructors at advocacy training programs, including me. My statement does not imply, nor was it meant to imply, that Ms. Shikhman was not a good counsel, particularly since she apparently did watch the judge’s pen. At no time did I actually denigrate Ms. Shikhman’s competence, as she contends.

[109] Admittedly, I was irritated by Ms. Shikhman. She was rude. On April 3, 2018, she accused me of having “essentially ruled” on an issue I had not ruled on. When I pointed out that I had not ruled on it and invited submissions, she said she had heard my comments and did not think she could persuade me otherwise. Following Dr. Klassen’s examination-in-chief, I granted her the indulgence of a full afternoon to prepare her cross-examination. I specifically scheduled an early start the next morning to ensure she had time to complete that cross-examination, but notwithstanding that, she failed to appear on time. When she did appear, she failed to apologize for her tardiness in the manner I would expect of courteous counsel. Furthermore, I found her manner in cross-examining the expert witness to be unnecessarily abrasive. I also considered that she unnecessarily wasted the time of the Court.

[110] Notwithstanding my irritation with counsel, the transcript shows that I did not chastise her. I did not yell or berate her; I never raised my voice. I did not criticize, other than to comment on her abrasive tone in suggesting the expert witness should use some common sense, which tone she herself acknowledged. I did not interrupt. I did not interfere in anyway with her cross-examination. I did not ask any questions of my own, other than to clarify the meaning of an abbreviation used by Dr. Klassen and to rule on an objection by Ms. Shikhman. Perhaps my irritation with counsel was observable to others, including her. But as I have already said, I am not known to have an unreadable face.

[111] In a perfect world, a judge should not look like she is annoyed with counsel. I regret that I was not better at concealing my own irritation. My judicial comportment was, in that sense, not perfect. However, it is a very long stretch from being irritated by counsel’s conduct to being biased against that counsel’s client. There is a presumption that a judge has integrity and is fair-minded – that he or she will judge a case based on its merits without bias. That presumption is not rebutted simply by there being a perception that the judge is irritated with one of the lawyers. As referred to earlier in these reasons, the Ontario Court of Appeal has stated that “[i]solated expressions of impatience or annoyance by a trial judge as a result of frustrations, particularly with counsel, do not of themselves create unfairness.” [23] My irritation with Ms. Shikhman was an isolated occurrence that only took place during her cross-examination of Dr. Klassen. A reasonable, properly instructed person, in this context, would not conclude that a judge’s mild and isolated irritation with counsel would render her incapable of making a decision based solely on the evidence and law. While I regret letting my irritation show, I reject the argument that there is a reasonable apprehension of bias arising from my failure to do so.

F. CUMULATIVE EFFECT

[112] Ms. Shikhman conceded that none of the circumstances she raised, standing alone, would be sufficient to displace the presumption that a trial judge has acted impartially and with integrity. However, she submitted that when taken together, these circumstances give rise to a reasonable apprehension of bias.

[113] I agree that it is necessary to look at the allegations cumulatively. [24] However, in my view, whether looked at individually or cumulatively, the result remains the same: a reasonable person looking at the whole of the circumstances would not apprehend that I was biased against Mr. Medford.

[114] At trial, I did not intervene at all during the evidence. I asked questions of both counsel during oral submissions, displaying no bias towards one side or the other. I made a quick decision on the merits, and followed it up within less than 48 hours with detailed reasons demonstrating a thorough analysis of the evidence and the basis for reaching the decision I did. In fact, as mentioned, no issue is taken by either party with the adequacy of those reasons to explain the basis for my decision. Furthermore, in that judgment, I made two decisions in Mr. Medford’s favour, both of which I had raised myself with counsel before rendering my decision. In addition, after hearing from both counsel, I revoked bail – a decision that has never been revisited in the two years that have since passed. In view of the foregoing, there is nothing whatsoever to support an argument that I was biased for or against Mr. Medford.

[115] At the sentencing stage, I raised the constitutional issue about non-publication, as it was my duty to do. However, throughout that process, I consistently protected Mr. Medford’s privacy interests, even protecting him from the mistakes of his own counsel. I gave indulgences to defence to counsel so that she could be fully prepared for cross-examination, and I overlooked her discourtesy to the Court by her lateness. Although I failed to completely conceal my irritation at what I perceived to be counsel’s impertinence, I did not interrupt or intervene in any way in her cross-examination.

[116] When everything is added up, it comes down to this: the expression on my face. Counsel perceived from the expression on my face that: (1) I found the subject matter of the videos to be disturbing; and (2) I found Ms. Shikhman to be irritating. No reasonable person looking at this whole context could reasonably conclude from this that I would likely be so biased against Mr. Medford that it would overcome my duty of impartiality.

[117] It follows that I find no merit in the application that I should declare a mistrial in this case, nor that I should recuse myself from proceeding with the sentencing.

MOLLOY J.

Released: August 24, 2018

COURT FILE NO.: CR-15-50000131 DATE: 20180824 ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – ANDREW MEDFORD Defendant/Applicant

REASONS FOR DECISION MOLLOY, J.

**Released:** August 24, 2018