ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
TRE ROBERTS-STEVENS
Defendant/Applicant
R. Kenny and J. Cruess, for the Crown/Respondent
D. Midanik, M. Bornfreund and N. Stanford, for the Defendant/Applicant
HEARD at Toronto: September 12, 2018
Michael G. Quigley J.
Reasons for Decision
Introduction and Overview
1On this application, Tre Roberts-Stevens asks me to recuse myself from further proceedings in this case, and in particular from sentencing him, on the basis of assertions that I demonstrated a reasonable apprehension bias against him during the eight-week trial that concluded on June 1, 2018. On that day, the jury returned a verdict of not guilty of second-degree murder but guilty of manslaughter. A sentencing hearing was scheduled for June 26, 2018. On June 25, 2018, I received the notice of application by Mr. Roberts-Stevens seeking that I recuse myself. No issue of apprehension of bias was raised before this date, which was almost a month after the jury returned its verdict.
2In light of the allegations, when the parties appeared on June 26, 2018, the sentencing hearing was adjourned to a later date and this hearing was scheduled for September 12, 2018 – the earliest available date. A timetable was established for the production of transcripts, motion records and factums. Some time after the June 26, 2018 hearing, Mr. Bornfreund advised that he had retained Mr. David Midanik to argue the motion.
3Recently, in R. v. Ruthowsky, Paccioco J.A. emphasized three fundamental propositions that underlie applications for recusal based on allegations of bias or a reasonable apprehension of bias.1 The context in Ruthowsky was an appeal, but the principles that inform the substantial burden that lies on the Applicant are equally applicable in these circumstances. At paras. 21-22, Paccioco J.A. reminds us that:
21 Reasonable apprehension of bias based on misconduct by a trial judge is a difficult ground of appeal. "There is a strong presumption of judicial impartiality and a heavy burden on a party who seeks to rebut this presumption": R. v. Dowholis, 2016 ONCA 801, 133 O.R. (3d) 1 (Ont. C.A.), at para. 18. See also Yukon Francophone School Board, Education Area No. 23 v. Yukon Territory (Attorney General), 2015 SCC 25, [2015] 2 S.C.R. 282 (S.C.C.), at para. 25. As the Supreme Court held per curiam in Roberts v. R., 2003 SCC 45, [2003] 2 S.C.R. 259 (S.C.C.), at para. 59, "the presumption of impartiality carries considerable weight, and the law should not carelessly evoke the possibility of bias in a judge, whose authority depends upon that presumption."
22 The evaluation of whether a reasonable apprehension of bias has been created is context-driven, influenced not only by the conduct of the trial judge, but the context in which that conduct occurred. As this court's decision in R. v. Hungwe, 2018 ONCA 456 (Ont. C.A.) demonstrates, a conviction appeal based on judicial bias can succeed even though the underlying proceeding is a jury trial — and thus where it is the jury and not the judge that determines guilt. The separation of functions between judge and jury can, however, present additional challenges in reasonable apprehension of bias appeals relating to the trial judge: R. v. Snow (2004), 2004 34547 (ON CA), 73 O.R. (3d) 40, 191 O.A.C. 212 (Ont. C.A.).
4The test for bias was stated summarily in R. v. S. (R.D.),2 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. ... [T]hat test is "what would an informed person, viewing the matter realistically and practically — and having thought the matter through — conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly” [Hereafter frequently referred to as “the Test”]
5This was a long and sometimes difficult trial. Although I have presided on criminal law matters for 13 years, this was the first time I presided on a homicide trial. I also readily acknowledge that as a human being, I am as capable as any of us to make mistakes or display emotion or human reaction. This trial raised all of those challenges.
6In applying the Test, I have endeavoured to adopt the perspective of an objective person who might have sat through lengthy portions of this trial – such as an objective member of the public who might have been a regular observer of criminal proceedings in our courts. To my mind, that is the person who the Test asks to determine the question. The question is whether or not such a person would or could have a reasonable apprehension of bias, being fully informed, having watched the proceedings, being aware of all the circumstances that transpired, having reflected on the issues contextually and having given it some thought.
7In the end, I find that none of these occurrences would reasonably be perceived by such a reasonable observer as demonstrating a bias or a reasonable apprehension of bias on my part against the Applicant, either on their own individually or considered collectively. I advised counsel of my decision on September 26, 2018, with these reasons to follow.
Crown Request for Summary Dismissal
8Crown counsel urged me in their written materials to dismiss this application summarily, without hearing oral submissions, based on the Supreme Court of Canada’s decision in R. v. Cody3 and r. 34.02 of the Criminal Proceedings Rules of the Superior Court of Ontario.4 Rule 34.02 permits the presiding judge to 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, dismiss it without further hearing or inquiry.
9In Cody, at para. 38, the Supreme Court instructs that trial judges should use their case management powers to minimize delay and therefore consider whether an application has a reasonable prospect of success before permitting it to proceed. Where a summary of the evidence reveals no basis upon which the application could succeed, the judge should dismiss it summarily.5 Even where an application is permitted to proceed, trial judges must exercise their screening powers, and should not hesitate to summarily dismiss “applications and requests the moment it becomes apparent they are frivolous."6
10Nordheimer J. (now J.A.) discusses the summary process for this preliminary evaluation in R. v. Papasotiriou-Lanteigne.7 However, while the process is simple, there is an important qualification to the analytical procedure described there. The process contemplates more than simply accepting all allegations as true. Rather, the allegations must be grounded in evidence. In Papasotiriou-Lanteigne, although the applicant’s allegations, if true, may well have support the desired remedy, the absence of evidence necessarily led to summary dismissal of the application.8 The question, therefore, is whether there is an evidentiary foundation from which the applications judge can draw the applicant’s desired conclusion.9
11The Crown’s position here was that the application was frivolous and should be dismissed summarily. In their submission, there was no evidence demonstrative of any reasonable apprehension of bias. They argued the application was primarily an attempt to re-litigate the hearsay application and raise objections to issues to which counsel did not object when they happened during the trial. They said this is the very kind of application Cody suggests should be dismissed summarily by trial judges as part of their trial management powers and duties; proper case management and use of resources requires that no further time be spent on this issue.10
12It may well be that other types of applications could and should be summarily dismissed in such circumstances, and other judges may conclude summary dismissal is available and appropriate in a case like this. However, I concluded it was important to hear the argument of both parties rather than dismiss the application summarily. My reason is simple: on an application for recusal based on an alleged bias or reasonable apprehension of bias on my part against the Applicant, I found that the heightened importance of perception and fundamental fairness made it important that both sides be heard in accordance with the audi alteram partem principle. As the judge accused of bias, I found that I should not dismiss such an application summarily, even if it otherwise could or should have been dismissed based on the merits.
The Allegations
13Defence counsel alleges that a number of events occurred over the course of this trial and since it ended, which they claim cumulatively give rise to a reasonable apprehension of bias on my part against the Applicant. These events include the following allegations:
(i) That I addressed the deceased’s family in open court, following the verdict and prior to sentencing, in a manner that demonstrated a concern by me for the deceased’s family’s opinion of the verdict;
(ii) That following the verdict and prior to sentencing, I stated, in my address to the deceased’s family, that I understood exactly how the jury reached its verdict;
(iii) That on multiple occasions during the trial, I “accepted gifts” from the deceased’s parents, both of whom had been witnesses at trial, in the form of doughnuts and that I expressed gratitude, in open court, to the deceased’s family for these “gifts”, both during the trial and following the verdict prior to sentencing;
(iv) That during the jury charge, I apologized to the deceased’s family, in open court, for a delay in completing the jury charge that resulted in the charge having to be completed on the following day, but did not apologize to Mr. Roberts-Stevens, who was in custody and had to serve an extra day of pretrial custody due to this delay, notwithstanding that he was presumed innocent at the time;
(v) That I provided a copy of my ruling dismissing the accused’s directed verdict application, not only to counsel for both sides but also asked that an extra copy be provided to the parents of the deceased, notwithstanding that they were not a party to the proceedings; and
(vi) That I “glared” at the defence “in an angry manner” after receiving a message from counsel during the jury charge to notify me that I was reading from the wrong draft.
14There was a further allegation made that I demonstrated bias by failing to admonish the deceased’s father, Bohdan Lypka, for allegedly calling out the word “tinting” when P.C. Rhonda Haley could not think of that word relative to the windows of the deceased’s red Honda Civic during her testimony. However, Mr. Midanik indicated that allegation would no longer be pursued, “because the record” simply referred to an “Unknown Person” as having spoken the word “tinting.”
15In his Supplemental Notice of Application dated July 26, 2018, the Applicant raised two further occurrences:
(vii) That sometime after reading the Notice of Application in which defence counsel outlined the incident that they allege occurred on May 29, 2018 relating to the delay in completion of my charge, I directed the court transcriptionist to not transcribe the portion of the transcript in which I apologized to the family of the deceased. Further, the defence contends that the content that I directed to not be transcribed also included me uttering a profanity and admitting to the word processing error that resulted in the overnight delay in the completion of my jury instructions; and
(viii) That I manifestly erred in law by granting the Crown’s pretrial application to admit inflammatory and prejudicial ante-mortem hearsay statements by Daniel Lypka to his parents alleging threats that had been made against him by Mr. Roberts-Stevens.
16Finally, on September 11, 2018, the day before this hearing, defence counsel advised of two further grounds for their application. Mr. Stanford’s email to me and Crown counsel on that date reads as follows:
In light of our review of the Reasons for Ruling on the Admissibility of Hearsay and Prior Discreditable Conduct Application that were released on September 6th, please take notice that we will be relying on the following additional grounds, which the Applicant submits give further rise to a reasonable apprehension of bias, in support of the application that is scheduled to be heard tomorrow.
At paragraph 57 of the Reasons for Ruling, the Honourable Court described the shooting that resulted in the death of Daniel Lypka as a murder;
At paragraph 69, the Honourable Court characterized the proposed defence construct of the events of December 27 and 28, as reported in the text messages, as "contrived" and an "effort to impugn Daniel Lypka's character as a whole". Then at paragraph 77, the Court characterized the defence submissions as "character attacks on Daniel Lypka".
Such further grounds in relation to the Reasons for Ruling released on September 6th as counsel may advise and this Honourable Court may permit.
17Based on the totality of these 11 allegations, the defence contends that a reasonable observer would apprehend bias on my part and perceive that I would not sentence Mr. Roberts-Stevens fairly, thus requiring that I recuse myself.
Applicable Legal Principles
18The foundation of the Test is the need to preserve public confidence in our legal system and the administration of justice. Public confidence in the justice system is informed by the fundamental value and expectation that “those who adjudicate in law must always do so without bias or prejudice and must be perceived to do so.”11 However, the jurisprudence establishes that where a judge demonstrates a leaning, inclination, or predisposition towards one side or another, or towards a particular result, or to decide an issue in a particular way,12 a perception of bias may reasonably be apprehended.
19Justice de Grandpre penned the locus classicus in his dissenting reasons in the Supreme Court of Canada’s 1978 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.”13
20However, de Grandpre J. added two important qualifications to that test that bear repeating. First, the grounds for the apprehension of bias must be substantial. Second, the Test should not and does not look at the issues from the perspective of the “very sensitive or scrupulous conscience.”14
21Moreover, actual bias need not be established.15 Rather, an apprehension of bias must be established by the moving party on a balance of probabilities.16 That burden of persuasion is heavy because a mere suspicion or possibility of bias will not suffice.17 That said, a reasonable apprehension of bias may flow from a judge demonstrating hostility to one of the parties, from a judge aggressively questioning a witness, or from a judge commenting on the abilities of counsel.18 Further, comments or actions of the judge following a recusal motion may themselves demonstrate bias.19
22There are essentially two elements to the Test. First, the person by whom bias is to be apprehended must be a reasonable person who must have knowledge of the circumstances, which are said to found the apprehension of bias. Second, the apprehension of bias must itself be reasonable.20
23The “informed” person who is to determine the question is not only a person who is informed of the actions or words alleged, but is also a person who is aware of “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.”21 They are a person fully informed of all the circumstances, but who also has a contextual understanding of the environment or milieu in which the comments or actions allegedly demonstrating an apprehension of bias occurred.
24As Hill J. noted in R. v. Fisher, that evidential context is particularly important. The Applicant must be able to show the existence of apprehended bias on the evidence that forms the record, “not on the basis of mere assertions, imagined meanings, and interpretations, or disappointment from adverse rulings.”22 Moreover, since there is a strong presumption of judicial impartiality that is not easily displaced, the Test requires a real likelihood or probability of bias.23 The apprehension of bias must itself be reasonable.24 The reason the threshold for the Test is high is “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.”25
25Obviously, trial judges are expected to (and should) behave in a judicious manner.26 It is obviously preferable that they should avoid expressions of annoyance, impatience, and sarcasm, but isolated expressions of impatience or annoyance by a trial judge as a result of frustrations, particularly with counsel, do not of themselves create unfairness, nor do they constitute bias or give rise to a reasonable apprehension of bias.27
Analysis
26Before commencing my analysis of the merit of the allegations raised by the Applicant, three specific points should be noted.
27The first is jurisdictional. On June 26, 2018, Mr. Bornfreund stated that it was not his intent to have me declare a mistrial nullifying the jury’s verdict of manslaughter, rather than second-degree murder. He merely wanted another judge to preside at the Applicant’s sentencing hearing, as is contemplated in particular circumstances under s. 669.2(1) of the Criminal Code.28 Subsequently, he changed his view and advised that if I were to recuse myself, it would require a mistrial.
28However, these alternatives cannot form part of my thinking on this application. The sole question for me on this application is whether I should recuse myself or not. If I were to recuse myself, whether the verdict would stand and another judge would preside at the sentencing or whether a mistrial would be declared, would have to be determined by another judge. That follows because a judge’s decision to recuse him or herself based on a reasonable apprehension of bias immediately deprives the judge of any jurisdiction to have any further involvement in the matter, including determining what the consequence of the recusal will be. Furthermore, the potential consequences of a judge’s decision to recuse him or herself do not form part of the Test.
29The second is that none of these allegations, except those of September 11, 2018 and the accusation of having glared at counsel, was made or raised at the time they allegedly occurred. Most of the allegations were first made on June 25, 2018; almost four weeks after the jury had found the defendant not guilty of second-degree murder but guilty of manslaughter. The second tranche of allegations was made on July 31, 2018. Consequently, there was no opportunity provided, either to opposing counsel to register their views on the matter, or to me to clarify or correct something, as would have been the case had counsel raised these allegations when they occurred or at least before the verdict was rendered.
30Third, defence counsel stated on June 26, 2018 that no allegations of bias would have been made against me were it not for my comment to the family of the deceased at the very end of the trial, after the jury had rendered its verdict and been discharged. That was the crystallization event and enough, in defence counsel’s view, to satisfy the Test.
31The triggering comments were made to the Lypka family after the jury had returned its verdict, been thanked for its service and discharged, when, from my vantage point, it was plain that the Lypka family was visibly upset by that verdict. The rest of the allegations are accumulated from earlier in the trial process and consist of alleged indiscretions on my part that were not of sufficient significance to comment upon or raise at the time. However, in the defence’s submission, when aggregated with the allegedly problematic comments to the deceased’s family, the entirety of my conduct rose to a level that demonstrates a reasonable apprehension of bias towards the accused, looked at cumulatively and in its entirety.
32I find, however, that a reasonable person who was aware of the entirety of the circumstances during this eight week trial, and who had thought about it, would not conclude that I had demonstrated bias against the accused, much less that my conduct or utterances during the course of the trial, some of which I admit were unfortunate, could or would cause a reasonable person to apprehend a bias on my part against Mr. Roberts-Stevens.
33Rather, I was actually concerned over the course of the trial that delays requested and granted to the defence on several occasions when they were unprepared to proceed (when, in my view, they should have been) could have given rise to concern on the part of the Crown. Those delays were the principal factor that caused this trial to extend two weeks longer than was anticipated and which had been promised to the jury members. Although initially the schedule included two weeks of leeway, it was not foreseen that time would be all consumed.
34With these preliminary matters having been dealt with, I will now turn to the defence’s allegations on this motion. I have kept in mind that the Applicant argued that the alleged conduct gives rise to a reasonable apprehension of bias collectively and in its totality. For the purposes of organization, in the sections that follow, I have addressed each of the separate grounds raised by the defence on this application in the order in which they were organized in the Applicant’s Notice of Application.
Grounds 1 and 2: My comments to the deceased’s family following the verdict and prior to sentencing
35The Applicant contends that when I addressed the deceased’s family in open court following the verdict and prior to sentencing, it was in a manner that, to the reasonable observer, would demonstrate that I recognized and acknowledged that the deceased’s parents were dissatisfied with the verdict which “signalled to the parents” that I intended to “appease them” by sentencing the Applicant harshly.
36The second ground arising out of the same occurrence was that following the verdict and prior to sentencing, in those same comments, I stated that I understood exactly how the jury reached its verdict.
37Specifically on that occasion, I made the following statement:
THE COURT: Okay. Before I leave, I would like to say a word or two to the Lypka family. You have been here for a very long time and you have observed this process take place. Whether the outcome is the outcome that you wanted, or thought should happen, is something that you will have to deal with in your hearts and minds. But the process that we have been through is a process that is so well grounded in our law and history in fairness, and a jury -- a jury decides the way a jury decides. And I can tell you, every -- I and certainly every counsel in this room have been in circumstances where juries have sometimes reached decisions we didn’t understand and sometimes they’ve reached decisions that we did understand. I understand exactly how the jury reached the decision that they did. So -- so take it as, I hope, an ending point of -- of the trial, and I hope that it assists you to move on in your lives. You will of course be asked if you wish to provide victim impact statements, and if you do, then they will either be read in at the sentencing hearing, or if you wish, they will be -- you will be permitted to come and read them yourselves at that time. So those are all things for you to think about. But I thank you for your patience with our process. I thank you for being here every day, and you pay honour to your son by doing that. And I thank you Mr. Lypka for the donuts. They were terrific. Thank you.29
38As it relates to my post-verdict comments to the Lypka family, the Applicant outlines the core of its argument in paras. 12-16 of its materials as follows:
(i) That a relationship of affinity would be perceived to exist between me and the Lypka family as a result of my comments and conduct throughout the trial;
(ii) That alleged affinity would cause a reasonable observer to perceive that I was communicating to the deceased’s parents that I was cognizant that they were disappointed with the jury’s verdict and that it was their desire for the Applicant to be sentenced harshly on the manslaughter conviction;
(iii) That a reasonable observer would perceive that I was signalling that I would put significant and undue weight on their wishes expressed in their victim impact statements, where they stated that no sentence would be harsh enough;
(iv) That since s. 722(1) of the Criminal Code requires me to consider the victim impact statements of the deceased’s immediate family, my comments to the deceased’s parents would be perceived by a reasonable observer to have affected the content of the deceased’s parents’ victim impact statement;
(v) That in commenting that I understood exactly how the jury reached its decision, a reasonable person would perceive that I had received information or was somehow privy to how the jury reached its verdict; and
(vi) That in commenting that I understood exactly how the jury reached its decision, a reasonable person would perceive that I had predetermined the Applicant’s degree of culpability on the manslaughter offence prior to hearing submissions from counsel; and
(vii) That my comment that I knew how the jury reached its decision would cause a reasonable observer to perceive that I was signalling that I had determined, prior to hearing the submissions of counsel, the findings of fact that I would consider on sentencing and that they were the findings consistent with the highest degree of moral culpability, namely that the Applicant had intended to shoot the deceased.
39In summary, taken as a whole, it is the Applicant’s position that an apprehension of bias crystalized (i) when I addressed the family of the deceased after the verdict and the dismissal of the jury, and (ii) when I commented that “I [understood] exactly how the jury reached the decision that they did.”
40Looking at the second question first, in this case, the jury was tasked with determining whether Mr. Roberts-Stevens was (i) not guilty, (ii) not guilty of second-degree murder but guilty of manslaughter, or (iii) guilty of second-degree murder. I listened to all the same evidence that the jury heard, and I instructed the jury in my charge on how to apply the law to that evidence. A plain reading of what I said merely reflects this fact.
41I “understood” how the jury came to the verdict that it did, just as I would suggest both defence and Crown counsel would also have had that immediate understanding. It was a verdict that was open and available to the jury on the evidence and I had provided a detailed and complex decision tree outlining all of the routes by which the jury could reach the conclusion it did, lawfully and on the evidence. Nevertheless, the Applicant levies these accusations, going so far as the offensive speculation that I was somehow involved with, or privy to, the jury’s deliberations, which permitted me to say what I did. It would be plain to the reasonable observer that the reality is considerably less nefarious or offensive.
42Mr. Roberts-Stevens admitted that he fired the shot that killed Daniel Lypka. As such, the question in this case was always whether Mr. Roberts-Stevens had the intent to kill when he shot and killed Daniel Lypka or whether he was acting in self-defence. This would be clear to a reasonable person in consulting my charge to the jury. In rendering its verdict finding the accused guilty of manslaughter, the jury plainly showed that it had concluded, on whatever facts it found, that Mr. Roberts-Stevens did not act in self-defence. That verdict also shows that it found that the intent required to establish second-degree murder was not present.
43As such, my statement simply related to the jury’s obvious finding of an absence of (i) self-defence and (ii) intent to kill. Its finding confirms that it found that the elements of the offence of manslaughter were satisfied to the criminal standard. That required them to have found (i) that the accused shot Daniel Lypka, as a result of which he died, (ii) that he did so unlawfully, (iii) that he was not acting in self-defence, and (iv) that he did not have the intent to kill. Beyond those obvious conclusions, I do not know how the jury reached its conclusion any more than anyone else does, because jury deliberations are secret in this country and cannot be known by me or anyone else. Knowing these principles, a reasonable person would not conclude from my comments that I somehow colluded with the jury while it reached its verdict.
44The Applicant’s speculation that I knew how the jury members had reached their decision because I was somehow involved in the jury’s deliberations, apart from having no evidential foundation, is not worthy of comment. There is no basis for any such conjecture to have been made.
45Furthermore, in my view, the fact that I informed the family members of their right to provide a Victim Impact Statement that would be considered as part of the sentencing cannot be seen as improper on any reasonable basis. That is a right accorded to all victims in criminal proceedings, and the trial judge is statutorily required to consider the victim statements in determining the fit sentence for an offender.30 However, no victim impact statement could ever displace my responsibility to determine the facts in accordance with R. v. Ferguson,31 and the fit sentence for this offender under the provisions of ss. 718, 718.1 and 718.2 of the Code, based upon all of the factors listed there, and the submissions of counsel.
46Here, the Applicant speculates that the reasonable observer would consider that I had been “signalling that [I] had determined, prior to hearing the submissions of counsel, the findings of fact that [I] would consider on sentencing” and that they would be “the findings consistent with the highest degree of moral culpability, namely that the Applicant had intended to shoot the deceased.”
47The unsubstantiated and speculative nature of this claim is enough, in itself, to dismiss it. I do not believe that a reasonable observer could find any indication from my remarks that support the defence’s allegations. But, in addition, it could not give rise to a reasonable apprehension of bias in the mind of a reasonable observer because it is legally incorrect.
48The jury’s determination that the Applicant was guilty of manslaughter precludes a finding that the Applicant intended to shoot and kill the deceased. That is one fact that must have been determined by the jury and that is evident in the verdict it reached. However, it would not be open to me as the sentencing judge, applying the principles in paras. 17-18 of Ferguson, to make the findings suggested by the Applicant “consistent with the highest degree of moral culpability” on this fact alone.
49The case law requires that I make the findings of fact that are the minimum necessary to ground the jury’s verdict. Apart from the core findings necessary to ground the elements of a manslaughter verdict, if there is a choice between a finding that would be regarded as aggravating and therefore in favour of the Crown, as compared with one that would be mitigating and in favour of the accused, before making an aggravating non-core finding of fact, I must be satisfied beyond a reasonable doubt that the aggravating fact is made out. Apart from core findings, the case law suggests that it is the fact that is more favourable to the Applicant that must be found.32
50My statement to the deceased’s family post-verdict speaks for itself. A reasonable person would conclude that it was intended as a courtesy to tell them I could understand that they might be disappointed, and they might believe that the Applicant “murdered” their son, but that they had to accept under our law that the sworn or affirmed jurors plainly did not see it that way. There is no evil or alternative intent grounded in the evidence that can reasonably be inferred. Informing victims of crime of their rights in a trial is in the interest of the proper administration of justice. Frankly, understanding and compassion are amongst the traits I would hope all judges would strive to exhibit towards the participants before them in proceedings.
51Moreover, even if my comment was regrettable, not every inappropriate or inadvisable comment will give rise to a reasonable apprehension of bias. The odd inappropriate comment falls far short of disqualifying bias.33 Neither is every “sympathetic” or “compassionate” comment indicative of prejudice, nor do expressions of sympathy necessarily demonstrate bias.34 For example, in R. v. M. (G.),35 the complainant was a young girl. When she was finished testifying, the judge made some comments thanking her for her testimony, telling her that she had done a good job of answering questions, and commenting that her teachers must like her. While observing that these comments might be viewed as overly sympathetic, the Summary Conviction Appeal Judge found they did not cross the line into pre-judging the complainant’s credibility. The comments were meant to show compassion toward a young child who had undergone a stressful experience by having to testify in court. They were also consistent with the trial judge’s courtesy toward everyone in court, including the appellant. Similarly, in R. v. Carlson, a B.C. Provincial Judge was found not to have offended the Test merely because a few tears were seen on her cheek after listening to very moving testimony.36
52In my judgment, with no nefarious intent present in my mind, understanding and compassion were what was called for at that moment. Not only would a reasonable observer conclude this from my behavior, but I think they would even expect this type of behavior from judges. Taken either by itself or in conjunction with my other actions throughout the trial, it is merely an expression of my practice of thirteen years of being courteous and understanding of all parties in the courtroom, and informing and explaining the trial process to them. Of course, these courtesies extend to a party with a vested interest in the trial but without legal representation or legal education.
53Therefore, I reject the Applicant’s claim that this ground alone or considered cumulatively come close to meeting the onus of demonstrating a reasonable apprehension of bias by me against one party or the other.
Ground 3: The alleged “gifts” of doughnuts
54The defence contends that on multiple occasions during the trial, beginning on May 4, 2018, I “accepted gifts” from the deceased’s parents in the form of doughnuts. Both of them had been witnesses at the trial.
55In three successive weeks during the trial, on May 4, 11, and 17, 2018, the parents of the deceased came to court with boxes of doughnuts for the staff. They first distributed the doughnuts at the morning break after I had left the courtroom. I knew nothing about it at the time it happened, but later came to understand from court staff that the doughnuts were offered to and shared by court staff, and by both Crown and defence counsel. I was offered by staff, and accepted, a cinnamon twist doughnut outside of court during the first morning break on May 4, 2018. However, the defence assertion that I accepted multiple “gifts of donuts”, or that I accepted them directly from the Lypka family, is factually incorrect.
56I did make the statements that are attributed to me. On May 4, 2018, I stated in court, “And on behalf of everyone in the court, thank you to Mr. Lypka and Ms. Semchyschyn for the doughnuts. I think everybody shared.”37 I thanked the parents again on May 11, 2018 when I stated in court, “I would be remiss if I did not again thank Mr. Lypka for the doughnuts.”38 Finally, on June 1, 2018, after the long address to the deceased’s parents cited above, I did state, “And I thank you Mr. Lypka for the doughnuts, They were terrific. Thank you.”39 I believe it was polite to thank them for a kind gesture.
57No reasonable person apprised of all of these circumstances would ever contend that the doughnuts were an effort on the part of the Lypka’s to purchase favour. Rather, their gesture was a simple, kind and human one, made for the benefit of all of the court staff and all the lawyers, both Crown and defence.
58The assertion that the doughnuts were brought in just for me as a “gift” to buy my favour is not grounded in the evidence and is an insult to the Lypka family and to me. It was obvious that the doughnuts were brought in for all the lawyers (Crown and defence), court security officers, court staff and the judge. They were never permitted to get anywhere near the jury room. The jury knew nothing about them at any time during the trial to the best of my knowledge.
59In regards to this ground, it matters not how many doughnuts were consumed, or by whom. However, in his affidavit, defence counsel evidently seeks to distance himself from the doughnuts when it is plain that he initially saw no harm in them and raised no objection at any time. Neither did he suggest to me that the practice should be brought to an end, or that I should deal with or address what he now says, weeks and months after the fact, was an occasion that called my impartiality into question.
60Mr. Midanik raised the point again in reply argument on this motion. Our exchange went as follows:
MR. MIDANIK: I’m saying had Your Honour realized that an issue would be raised at some point about you accepting something as trivial as a doughnut, there’s no chance that you would have accepted it.
THE COURT: Well, that’s the whole point. Nobody ever raised any issue whatsoever, Mr. Midanik, about that. Everybody rode along gently with it. In fact, I’ll note that everybody in the courtroom rode along with it much more than I did, all right. That’s the whole point. But nobody ever made a comment about it.
MR. MIDANIK: No, I understand.
THE COURT: I hear your point.
MR. MIDANIK: And I can understand Your Honour feels – Your Honour, if I can use the term – well, I will because it’s just a submission. That you’re being victimized by this because someone should have brought it to your attention sooner, and you’re correct that someone should have. There’s no question because – and perhaps we wouldn’t be here now, but - ….
THE COURT: The suggestion that I would, after 13 years on this bench and having presided on the number of cases that I have, compromised the impartiality that I have been proud of and the oath that I took… for a doughnut,… is really quite absurd, sir.
MR. MIDANIK: I understand, Your Honour, but there’s still – it doesn’t change the appearance problem.
THE COURT: I have your point.
MR. MIDANIK: And that’s why, as I think, Your Honour, I know how difficult it is for Your Honour to preside on an application like this where it’s your own ….
THE COURT: I don’t mean to be critical of you in making that statement that I just did. It’s just…
MR. MIDANIK: That’s okay, Your Honour. I….
THE COURT: … you understand I’m sure how I feel.
MR. MIDANIK: Your Honour, I understand, and if were sitting there I’d be much less polite than you are.
61If defence counsel came to perceive an impropriety on the third occasion, having obviously perceived no impropriety on the first two occasions, they had a professional obligation to raise it at the time. That would have permitted me to hear from the Crown on the point, at the time, and to take immediate steps to deal with it. This failure to raise the issue or to object speaks to the actual strength of this purported ground of apprehension of bias. Even defence counsel did not perceive it to be enough of a concern to say a word when it happened on three separate occasions.
62In Ruthowsky, Paccioco J.A. recently restated the general rule that allegations of bias or a reasonable apprehension of bias must be advanced as soon as reasonably possible.40 While the context in Ruthowsky was an appeal, there is no material difference from these circumstances, and the failure to raise perceived issues at the first opportunity causes the same impediments here as it did there. At paras. 25-26, Paccioco J.A addresses these issues as follows:
25 More importantly, there are imposing impediments to this ground of appeal that arise from the failure of defence counsel to object, and the absence of an evidentiary record at trial confirming the allegations now being made about the trial judge's demeanour. This failure to contemporaneously document in open court the trial judge's impugned conduct in the record creates at least three problems.
26 First, as this court confirmed in R. v. Nero, 2016 ONCA 160, 334 C.C.C. (3d) 148 (Ont. C.A.), at para. 33, "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". This did not occur here.
63Just as in Ruthowsky, the alleged problems in this case were not raised. Instead, the defence waited until after their client’s fate had been determined by the jury, and only then decided to raise the issue and allege improper conduct on my part. Indeed, if any such concern had been raised, I could have given the jury the instruction from R. v. Snow.41 Instead, as in Ruthowsky, nothing was said and the impression was left that the Applicant took no issue with what had occurred.
64In my view, a reasonable person in court observing these events, and the thanks I expressed, would not conclude that I could reasonably be apprehended to be biased against the Applicant. They would not think I would sentence the Applicant more harshly as a result of eating a doughnut. The insignificance of the events was plainly acknowledged by the inaction of the Applicant’s counsel at the trial, and by Mr. Midanik during this hearing. I reject that the events were any more significant than they were on their face.
Ground 4: My apology for delay in completing the jury charge allegedly excluding Mr. Roberts-Stevens
65On May 29, 2018, I commenced charging the jury about the law and its application to the evidence that had been called at trial. My intention was that the charge would finish that day and the jury would begin its deliberations that evening. The jury had been informed of this, as had the family of the deceased, so that they could make arrangements to be sequestered and await the verdict, respectively.
66For several days prior, there had been discussions of pre-charge conference issues. Then, on the morning of May 29, 2018, there were further issues raised by Crown and defence counsel concerning the precise wording of the charge, and the information I should provide to the jury that morning. I could not commence delivery of my jury instructions until all of those issues were addressed. Consequently, I did not begin to address the jury until midday.
67Near the end of the day, however, it became clear that a portion of the final draft of the charge contained incorrect wording from an earlier draft, a function of sequential drafts of the charge having been prepared over three days of pre-charge conference. When I made that discovery, my charge to the jury was paused, and the jury was excused in order to correct the issue and to ensure that there were no further issues with the wording that would be provided. Admittedly, I was annoyed by the added delay.
68Given that it was late in the afternoon, I eventually decided that the jury would be sent home for the day and that I would spend the evening proof reading the final version of the charge one more time to ensure that it was correct. Neither the defence nor the Crown took issue with that decision. Indeed, when asked for his views, Mr. Bornfreund for the defence took the position that the jury should be excused for the day and that the charge should continue the next morning:
Mr. Bornfreund: I… it’s fair to ask them, but I actually think it’s Your Honour’s decision. You’re still in the driver’s seat here. So in – in that respect, I personally think it should go over if you have at least two more hours. That’s a lot. But it’s their --- you put it to them and they’ll let us know.42
69I considered the matter and followed my own instincts that the matter should go over to the next day to complete the charge. At that time, I stated on the record that the proper wording of the charge was simply “too important” to get wrong. The jury was brought into the courtroom and informed of the change in schedule. I apologized to the jury for the inconvenience this change of schedule might cause them.
70However, just before the jury was brought into the courtroom, I addressed the family of the deceased, who were observing the proceedings, to inform them of the adjournment. I said “I’m sorry members of the family. It’s too big and important. It has to be this way.”43
71I regarded that statement as a simple recounting of the circumstances in which I found myself, made to inform the family of the deceased of the new schedule and that it was an essential delay to ensure a fair trial. Even apart from any legislated provisions or statutory rights they may have, I have always regarded it as uncontroversial that civility requires judges to treat victims of crime and their families with common courtesy, compassion and respect as they navigate all of the various stages of the criminal justice system.
72Mr. Midanik acknowledged in his submissions that, looked at alone, that was all it was: a simple courteous statement to the Lypka family to tell them what was going to happen. He made the same concession about most of my conduct.
73Looked at from that perspective, I find that the defence fails to meet its onus to explain how this could lead any reasonable person to infer any sort of bias on my part, beyond the mere assertion, and my unfortunate oversight, in not providing a specific corresponding apology to the Applicant.
74The transcript actually reveals that I did apologize generally to the court, including Mr. Roberts-Stevens, just before the jury re-entered and were told they would have to return for the completion of my instructions the next day. After requesting that the jury be brought back in, I said in general to everyone in the courtroom, including Mr. Roberts-Stevens: “I’m sorry about this.”44 From my perspective, and I believe from the perspective of a reasonable observer, I did apologize to everyone in the courtroom, including Mr. Roberts-Stevens. In hindsight, I do regret not specifically mentioning him earlier, insofar as he alleges a biased slight on my part arising out of that oversight.
75However, I am unable to see how any perception of bias can flow from those circumstances. This, especially given that the Applicant’s counsel supported the very course of action I chose to follow as being in the Applicant’s best interests. While I regret that oversight, the suggestion that my failure to extend the same courtesy to Mr. Roberts-Stevens as I did to the Lypka family can reasonably be regarded as an indication of favouritism or bias is one that I reject. A reasonable person who had sat through the court proceedings that day, and was aware of all the circumstances, would not reasonably apprehend from this event that I was or could be biased against Mr. Roberts-Stevens.
76Frankly, no apology was due to anyone that day. The result at the end of that day was simply what trial fairness and getting it right required, as was confirmed by Mr. Bornfreund’s concurrence in the result. A reasonable person would conclude that I was simply being polite and courteous. I find that this ground does not assist the Applicant’s argument in any way.
Ground 5: Providing a copy of the directed verdict ruling to the parents of the deceased
77When I released my ruling on the Applicant’s motion for a directed verdict, which I dismissed, I provided copies of my ruling to counsel for both sides. I also had an extra copy to be provided to the parents of the deceased.45 The defence claims this evidences bias on my part because in its submission, the Lypka family “were not a party to the proceedings”, and accordingly ought not to have received a copy of that ruling.
78There are more parties to a criminal trial than the accused. When a ruling is provided, the Crown, the defence, and the public are entitled to know how the Court concluded the way it did. Indeed, in the Crown’s submission, victims of crime have a guaranteed right under the Canadian Victims Bill of Rights to be informed upon request of what a court ruling was.46
79There are numerous ways in which I could have communicated my ruling: I could have read it aloud into the record; I could have provided written reasons. Frequently, as I did on the Crown’s application to admit certain hearsay evidence at trial, I do both, providing brief reasons for my ruling in court on the record, but with formal fulsome reasons for ruling to follow. I frequently do that where there is insufficient time to read a lengthy ruling into the record. Instead, I simply provide copies of my signed written reasons to those affected who would want to know the reasons for my ruling.
80The victim’s parents, as members of the public and victims affected by the crime, certainly had an interest in knowing my reasons. They no doubt were entitled to know the reasons grounding the ruling, whether they are formally considered “parties to this proceeding” or not. Providing them with a copy of my written decision was the appropriate means, in my view, to inform them of the reasoning.
81Again, I have considered the test from S. (R.D.). A reasonable person would not conclude that I would not make decisions fairly, simply because I provided a copy of my ruling to the victim’s family. It was a harmless gesture of courtesy to inform the Lypka family of my reasoning. If this could reasonably serve as a basis to apprehend bias on the part of a trial judge, our justice system would be premised on excluding the public from understanding the trial judge’s reasons for decisions. But that is not the premise. The premise is openness and permitting, indeed encouraging, the public (which includes the members of a victim’s family) to have an understanding of the basis for my ruling.
82In his submissions, as with all of these allegations, Mr. Midanik again conceded that there was nothing wrong with my action in and of itself. He agrees it was merely a considerate gesture. However, given that the Lypka family could have received a copy of my ruling from the Crown, or from Victim Services, he argues that the fact that I voluntarily provided a copy of my ruling to them demonstrates “an affinity for them” that would cause a reasonable apprehension of bias that I would not decide matters relating to Mr. Roberts-Stevens fairly.
83I reject that argument. In the context of the trial as a whole, I believe the reasonable person would simply regard me giving a copy of the ruling to the Lypka family as a gesture of consideration, a means of providing them with the reasons for my decision since I was not reading the decision in court. Nothing more. Nothing less.
Ground 7: That I glared at the defence in an angry manner
84Trial judges should behave in a judicious manner and it is preferable that they should avoid expressions of annoyance, impatience and sarcasm. However, isolated expressions of impatience or annoyance do not constitute bias, nor do they give rise to a reasonable apprehension of bias. As the Ontario Court of Appeal observed, at para. 243, in Chippewas of Mnjikaning First Nation v. Chiefs of Ontario:
All of that said, appellate courts have been 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), 2002 45059 (ON CA), 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. [Emphasis added.]
85The defence contends that after receiving a message from both the defence and the Crown during the jury charge to indicate there was an issue, I glared at the defence in an angry manner.47 However, a glare or look of disapproval at the defence, even if it occurred, does not rise to the level of establishing a reasonable apprehension of bias, and the mere assertion that such an event happened does not make it so.48
86The Crown argued that neither he nor Mr. Creuss actually witnessed a glare from me towards counsel. However, Mr. Bornfreund has sworn in his affidavit that I did glare angrily at him.
87Admittedly, I was very frustrated in that moment. The Registrar interrupted me as I was facing the jury to the left of the courtroom during my charge. I did turn around to the right to look at her, glancing first at Crown counsel as I turned. I am certain that I would have appeared displeased. My Registrar later told me that she felt the brunt of my displeasure for giving me the note. I believe that the primary focus of my vision was towards my Registrar, but in looking at her, I also acknowledge that from where I was sitting, Mr. Bornfreund was slightly to the right of the exact same line of sight as she was. It could very well have appeared to him that I was glaring at him, not my Registrar. My response when it was raised was one of complete frustration at the entire accumulation of issues that had arisen that day as I was trying as best I could to provide the jury with clear and understandable instructions, not only on the charges, but also the defences claimed.
88Was it a “glare” or a look of “impatience”? Only the observer can recount what sentiment he or she detected, but I do not think that I “glared angrily at Mr. Bornfreund”, or even if I did, that the jury would have or could have seen any of the visual interactions that occurred, because I was facing away from the jury at that time.
89However, I will assume and accept for the purposes of this application that Mr. Bornfreund could and did reasonably perceive that I did “glare” at someone, and that he perceived it was at him. I then remedied it by explaining to the jury, after they returned to the courtroom, what had happened and making clear that the interruption had come from both Crown counsel and the defence, not one or the other. I did that to remedy any perception that if the jury did perceive that I was angry or frustrated at the interruption, that it was not directed towards one side or the other. However, even in those circumstances, the single act does not meet the high bar to establish an apprehension of bias. Justice Clark discussed this point thoroughly, at para. 77, in Ibrahim:
77 In R. c. Hébert, [2014] Q.J. No. 7734, 2014 QCCA 1441 (C.A. Que.), at para. 25, Hesler C.J.Q., held that "exemplary patience cannot be demanded of judges at all times." Thus, while there may be cases where it might suffice, for the most part the demonstration or expression by a judge of annoyance toward counsel, although unfortunate, will not create an apprehension of bias. See also Kelly v. Palazzo (2008), 2008 ONCA 82, 89 O.R. (3d) 111 (Ont. C.A.), at para. 21, where Doherty J.A. stated:
It takes much more than a demonstration of judicial impatience with counsel or even downright rudeness to dispel the strong presumption of impartiality. While litigants may not appreciate that presumption and thus may misread judicial conduct, lawyers are expected to appreciate that presumption and, where necessary, explain it to their clients.
90The core point made by both Clark J. in Ibrahim and Doherty J.A. in Kelly v. Palazzo is that judges are human beings,49 and as Southin J.A. observed in Middelkamp v. Fraser Valley Real Estate Board:
[A] trial is not a tea party. But bias does not mean that the judge is less than unfailingly polite or less than unfailingly considerate. Bias means a partiality to one side of the cause or the other. It does not mean ... a partiality or preference or even a displayed special respect for one counsel or another, nor does it mean an obvious lack of respect for another counsel, if that counsel displays in the judge's mind a lack of professionalism. 50
91Clarke J. continued, at para. 80, of Ibrahim, as follows:
…[J]udges are human beings and it is to be expected that a judge will have some facial expression and will, of necessity, move his or her head and/or body from time to time. While, obviously, judges must strive to appear neutral not only in what they say, but also in their non-verbal behaviour, it is simply not possible to sit Sphinx-like for hours at a time and, in turn, for weeks on end, all the while exhibiting no facial expression, and moving neither one's head nor body.
92It would come as no surprise to the reasonable person considering the Test that judges are human beings who do occasionally display emotion, including impatience or frustration. Sometimes, this occurs more than occasionally. While perhaps it would be preferable that they do not occur, it would not be human. It is inevitable that all of us will sometimes display feelings, through a frown, a glare, a stare or a rolling of the eyes. No trial is ever bereft of these or other human expressions.
93However, despite the efforts we all make to behave well at all times, I find it to be disingenuous and mechanistic to think that such human expressions can or will ever be avoided entirely. Judges are not automatons without feeling, expression or reactions, any more than the lawyers are who appear in front of them, and who regularly demonstrate that they have not parked their humanity, feelings and expression of them at the courtroom door.
94However, even so, at its highest, a display of emotion, particularly a single display as is alleged here, does not displace the strong presumption of impartiality. This, just as human experience should demonstrate to all of us that a person is not biased against you simply because they may frown at you, or exhibit facial annoyance.
95The reasonable person would have been aware of all the circumstances that played out during the two days it took me to deliver my jury instructions, and aware of my word processing errors that I explained to the jury, which frustrated me and for which I apologized. I reject that such a person would conclude that any expression on my face that may have been detected by Mr. Bornfreund in that one precise moment could reasonably be perceived as apprehending bias on my part against Mr. Roberts-Stevens. Whether considered individually or cumulatively, this allegation cannot succeed.
Ground 8: That I directed the transcriptionist to not transcribe a portion of the transcript
96In relation to Ground 4, defence counsel alleges that after reading the Applicant’s Notice of Application in which the preceding incident was alleged, I directed the court transcriptionist to not transcribe the portion of the transcript in which I gave that apology. In so doing, I excluded a single word of profanity and my admission of the word processing errors that resulted in the overnight delay.51
97On May 29, 2018, as I was deciding whether to either finish my instructions to the jury or adjourn court for the day and finish the charge the next day, I paused in the middle of a conversation with Mr. Bornfreund to note that the Court was off the record. Crown counsel had not yet returned to court as we were on the afternoon break. The jury was still in its Jury Room.
98After all counsel returned to the courtroom, a brief discussion ensued about ensuring that I was instructing the jury from the correct draft. I then advised counsel that it was my decision that the continuation of my jury instructions would have to be adjourned to the next day to ensure that the final draft of those instructions was correct and as agreed to.
99Evidently, I never formally stated that the proceedings were back on the record, though I know my very experienced Court Reporter would immediately have turned the recording back on the second the jury started to re-enter the courtroom. Counsel never raised this issue.
100When the jury returned to the courtroom, I repeated for their benefit my decision to adjourn until the next day. I provided a brief explanation to the jury as to why that needed to occur. Mr. Roberts-Stevens was present for the “off the record” discussion as well as the discussions that occurred that I thought were “on record.”
101However, after she turned the digital recording equipment off and throughout the “off the record” discussion, for reasons neither the Court Reporter or anyone else can explain, the digital recording equipment continued to record everything that occurred in Court. A transcript of those minutes of discussion is included in the Applicant’s materials.
102Nevertheless, apart from my apology that my charge to the jury would be delayed until the next day, Mr. Midanik did acknowledge in his submissions that there was nothing harmful, in and of itself, in me asking the Reporter to go off the record. He stated:
And also, just for the record, I’m not saying that the fact you went off the record by itself is an issue on this appeal – it’s not appeal, it’s not an appeal – on this application. The fact that you went off the record, with the greatest of respect, you probably shouldn’t have, but that itself, that is not part of the bias application the fact that you decided to go off the record….Because you thought this was an administrative thing and that’s, I suspect, why you did it….It was understandable.52
103The Applicant’s written materials claim that I had a biased and nefarious intent in advising the transcriptionist not to transcribe what was said off the record. However, since Mr. Midanik conceded that this was no longer being claimed as a ground of this bias application, and that the entire occurrence was “understandable”, little more needs to be said. I appreciated his acknowledgment and concession of what was obvious. Nevertheless, I would make several comments in concluding on this ground.
104First, regardless of whether the recording device failed to turn off, I told the transcriptionist not to transcribe the “off the record” portion because it was stated by me to be off the record. Thus, while I approved all of the other transcripts, I did not approve transcription of that brief exchange. Again, this would not appear nefarious to a reasonable observer. Rather, it would appear logical to omit erroneously recorded court proceedings that I had stated prior to the recording would be off the record.
105The trial process requires rulings as the trial progresses. In this case, I ruled that a portion of the proceedings on May 29, 2018 was off the record. It followed that those portions of the proceeding should not be transcribed. The remedy, if the Applicant feels this was an error, is review on appeal.
106Second, in regard to my utterance of a relatively mild profanity, this occurred while the jury was out of the courtroom. I was frustrated at myself. I was in disbelief that these word processing problems had arisen, given all the effort that had gone into getting it right. I expressed that expletive directed towards myself. Mr. Midanik acknowledged that was unfortunate, but also understandable and unimportant, since it had not been directed at Mr. Roberts-Stevens.
107Finally, Mr. Midanik’s observation that “one should never really go off the record in a criminal proceeding,” especially in a homicide trial, is probably largely correct. However, the mere fact that I did not initially have that portion transcribed was not due to an effort to hide anything, but simply to exclude something I thought at the time was inconsequential.
108I find that a reasonable person would not conclude that my ruling to not transcribe that brief portion of the proceedings was “designed expressly and consciously by me to foil this bias application being brought”, as contended in the Applicant’s written submissions. My instruction was based on the simple fact that I had gone off record at that moment, rightly or wrongly, to deal with an administrative problem. This ground does nothing to establish an apprehension of bias, a point the defence evidently concedes.
Ground 9: That I erred in law by granting the Crown’s pretrial application to admit utterances by the deceased, and in expressions I used in that Ruling
109In pre-trial applications, Crown counsel sought rulings (i) admitting a number of hearsay utterances of the deceased for the truth of their contents, either on the basis of the state of mind common law exception to the hearsay rule, or under the principled exception on the basis that the utterances met the tests of necessity and threshold reliability, and (ii) permitting the Crown to lead evidence establishing a particular chronological narrative, but that included a number of instances of discreditable conduct relative to the accused. Further, Crown counsel sought rulings admitting those utterances and conduct on the basis that their probative value exceeded their prejudicial effect.
110Most of the hearsay and the discreditable conduct evidence that was admitted actually went in on consent. But, the utterances that were made by the deceased to his parents and to several friends, which were recorded by Toronto Police Services in several 911 recordings, were hotly contested, as was one utterance by the accused that was alleged to be more prejudicial than probative even though it was acknowledged to have been made. Following the pretrial motions, I ruled that the disputed hearsay and evidence of discreditable conduct would be admissible, in each case with appropriate jury instructions at the appropriate time. I gave brief oral reasons on the record at the time I gave my ruling, but with a promise of full written reasons in due course. I delivered my full reasons to counsel on September 6, 2018 – a week before the hearing of this application.
111Defence counsel contends that the disputed hearsay statements did not come close to meeting the standard for substantive reliability set out by the Supreme Court of Canada in R. v. Bradshaw.53 They contend there was significant evidence before the Court that brought the reliability of the statements into question. In their submission, the prejudice to Mr. Roberts-Stevens that derived from my ruling was not and could not be alleviated by my charge to the jury in which I cautioned strongly against using bad character evidence to engage in propensity reasoning.
112The Applicant now claims that my decision to rule in favour of the Crown on the hearsay and discreditable conduct application somehow establishes an apprehension of bias on my part against him, and “that [I] personally believe that the Applicant should have been convicted of murder.”
113It is not and cannot be true that merely deciding a ruling, whether counsel agrees with it or not, can constitute grounds for a reasonable belief of an apprehension of bias on my part against Mr. Roberts-Stevens. The case law establishes that more than “…mere assertions, imagined meanings, and interpretations, or disappointment from adverse rulings”54, is required for the Applicant to meet the onus of demonstrating a reasonable apprehension of bias.
114The trial process is adversarial. As the trial judge, I am required to make rulings. Those rulings invariably favour one side or the other. However, the unsuccessful party cannot then turn around and claim that the only reason they could possibly have lost the motion is bias on the part of the trial judge. The remedy for such an aggrieved party is review on appeal, not a claim of recusal for bias.
115Other attempts at this type of argument in other cases have at least claimed that there was a pattern of rulings against a party, or some aspect of the interaction between the trial judge and counsel after the ruling that contributed to an appearance of bias.55 Not only is there none of that here, but even those cases have not succeeded.
116For example, in R. v. Czerniak, defence counsel brought an uncontested adjournment application, which was dismissed by the Court. The trial judge expressed criticism of counsel for the failure to bring a proper written application, among other grievances. As the trial was about to proceed, there was further discussion about the dismissed adjournment application in which the trial judge ultimately called defence counsel “unprofessional.” Nevertheless, in rejecting the bias claim on appeal, at paras. 19-20, Trotter J. (now J.A.) concluded:
19 It is not appropriate for counsel (Crown or defence), who is unhappy with a ruling at trial, to refuse to accept the result, not let go of the point, "get into it" with the trial judge, and then turn around and ask the judge to recuse him or herself for what transpired. In this case, the multiple requests for recusal, which were infused with references to the trial judge's denial of the adjournment request, were nothing more than a transparent attempt to re-package the adjournment issue. The trial judge failed to give effect to it during the trial. Dambrot J. failed to give effect to it on the prohibition application. And I refuse to give effect to it on this summary conviction appeal.
20 The appellant also argues that the trial judge's interventions during the course of the appellant's testimony on the s. 11(b) motion created the appearance of unfairness. I disagree. The interventions during the appellant's testimony were almost exclusively for clarification purposes. They were not gratuitous, nor argumentative. The trial judge did not insinuate herself into the proceedings unduly. Nothing she said or did came close to suggesting that she favoured one side over the other: see, generally, R. v. Snow, at para. 24, R. v. Valley, and R. v. Adano, at paras. 23 and 24. Interestingly, there was no objection by defence counsel at all during this testimonial phase of the proceedings. Defence counsel did not complain that he was hampered in his role or that he was unable to present his client's case effectively. Keeping in mind that experienced defence counsel had asked the trial judge to recuse herself on a number of occasions, the lack of objection to the trial judge's interventions is an important measure of the innocuous nature of these interventions. In the end, the trial judge did not cross the line between acceptable interventions, and interventions that destroy the appearance of fairness: see R. v. Snow, supra. [Citations omitted.]
117In Colpitts, a trial judge in Nova Scotia refused to recuse himself based on rulings he had made and the tenor of his remarks, arising out of an undisclosed medical issue, which the defendant claimed created a perception of unfairness and raised concerns about the judge’s ability to complete that trial. The trial judge, at paras. 19-21, responded as follows in rejecting the recusal:
19 Mr. Potter's counsel urged me to listen to my words rather than just reading them. He suggested listening would allow me to appreciate the profound impact these words had on the Defendants. Essentially, he argued that the way the message was delivered created a perception of unfairness and raised concerns about my ability to complete this trial. He suggested the Defendants have lost confidence in the justice system. Mr. Colpitts submitted that when he heard my words it was obvious to him that I was "suffering and troubled." Both Defendants suggested that past rulings — particularly those made during the presentation of Mr. Colpitts' defence — are now suspect, and that I should end the trial before further harm is caused.
20 I acknowledge that I lacked a degree of composure when delivering the above remarks. It was an unanticipated emotional response to temporarily shutting down the trial when I have spent so much time and energy attempting to keep the process moving forward in the face of many obstacles. That said, I do not share the Defendants' view that either this involuntary show of emotion, or the adjournment that followed, has irretrievably compromised the actual or apparent fairness of the trial, or prejudiced the ability of either Defendant to make full answer and defence.
21 Judges are human beings. We are not immune to the physical and mental demands inherent to long trials. Those demands are heightened where, as here, the evidence is of a highly complex and technical nature, the trial involves self-represented litigants, and the proceeding spans a period of years. There may be occasions where the stresses of a long trial adversely impact the health of one or more of the participants and a recess is necessary to resolve those issues. The fact that a proceeding is interrupted for a period of time to address a trial judge's health concern — whether triggered by trial-related stressors or other factors entirely — does not, without more, create a presumption that previous rulings were unfairly influenced by that health issue. Any suggestion by the Defendants that the rulings I made during Mr. Colpitts' defence were motivated by anything other than this Court's duty to prevent Mr. Colpitts from wasting judicial resources is entirely speculative and, in my view, is not supported by the record.
118Finally, there is the commentary of Hill J., at paras. 78-79 in Fisher:
78 On the whole of the record, I am un-persuaded that the applicant has discharged his onus of demonstrating any conduct on the part of the trial judge, alone or cumulatively, which meets the reasonable apprehension of bias test. To return to where I started, this is not an appeal court reviewing the correctness of trial rulings. The coincidence of lack of success in arguments before a trial judge is neither an indicator of counsel inadequacy or of judicial impropriety. Some of the applicant's submissions or articulated perceptions before the trial judge and before this court carry a quality of extravagance. While I do not doubt for a moment the defence positions to be honestly held, they are simply not supported by any objective view of the record.
79 One last point. In his submissions, Mr. Reiter suggested that he was aware that in other cases, following an unsuccessful defence motion to the superior court of criminal jurisdiction alleging a reasonable apprehension of bias, trial judges "suddenly recuse themselves". Counsel earlier submitted that the trial judge ought to have considered a judicial pre-trial attended by "a Superior Court..Judge," himself "and counsel so that this matter can be dealt with, not on the record in court, but as part of the internal housekeeping of the profession". During the first day of argument of the prohibition application, Mr. Reiter stated:
And it would seem to me that at this point in time an appropriate step to be taken would be for this court to adjourn this hearing and to ask [Regional Senior] Justice Durno for some assistance and guidance on how to deal with what is a situation that may or may not be the fault of Justice Campling but, no matter how you cut it, it's untenable, he can't deal with it, because whatever happens, the result here, it's got to start fresh from the beginning.
In my view, indirect attempts to remove a presiding trial judge outside the conventional legal process are not appropriate. Justice Campling remains as the trial judge. It is time to get on with any remaining motions and, depending on the results thereof, the trial itself.56
119The Applicant’s claim in this case falls well below the rejected claims in Czerniak, Colpitts and Fisher. Counsel was not disparaged here. There was no oral conflict between me and counsel. Rather, a ruling was made that did not favour the Applicant. If the Applicant seeks to review it, our law permits that on appeal. However, nothing about the decision even begins to suggest an appearance of bias. The appearance of bias, if it exists, must be based on evidence, not the Applicant’s assertions and/or disappointment at that single adverse ruling.
120There is a further aspect to this allegation to be addressed. On September 11, 2018, the day before this hearing, Mr. Stanford provided notice of two further grounds for the recusal motion in an email addressed to me and Crown Counsel. As set out in para. 16 of these reasons, he contended that there were three specific aspects of my ruling relating to my choice of words which display a reasonable apprehension of bias. First, the defence takes issue with my use of the word “murder” at para. 57 of those reasons as follows:
Then, two days before the homicide, Mr. Lypka started to evidence conduct and do things that were certain to cause anger to Mr. Roberts-Stevens. Mr. Roberts-Stevens needed Daniel Lypka’s car to sell his drugs, but Mr. Lypka was not enjoying the arrangement that let Mr. Roberts-Stevens have use of his car, and he persistently tried to get it returned to him, repeatedly phoning Mr. Roberts-Stevens and texting him over those two days to return the car and give him his money. That course of dealings culminated the day before the murder, when Mr. Roberts-Stevens responded “[w]ell, just keep calling and texting me and watch what I do.”
121In a thirty-seven page ruling on the Crown’s hearsay application, the one use in para. 57 of the word “murder”, in the context of the paragraph where it was used, is entirely innocent. I believe that a reasonable person would reject the contention that, by using that word, I was “subconsciously” conveying my personal belief that the Applicant was guilty of murder. The suggestion is a contrivance that fails to appreciate context: the Applicant was charged with “murder.” Neither in my view can the expression I used to characterize the position taken by defence counsel on the application be regarded as expressions of bias, or expressions that would cause a reasonable person to perceive an apprehension of bias on my part. They are rather my characterization of the submissions being made, which remain accurate in my view from an evidentiary perspective. If my characterization of those submissions was an error on my part, that is a question for appeal.
122Indeed, a reasonable person who read the entire ruling could not help but conclude that there was commentary inserted intended to benefit the Applicant and ensure a level playing field. Paragraphs 99-119 of the Reasons for Decision relates to the testimony of P.C. Brown, which was received later in the trial, after the hearsay rulings had been given.
123This testimony called into question at least one of Daniel Lypka’s ante-mortem hearsay statements. Inexplicably, that evidence had not emerged earlier during the voir dire before the trial proper commenced. I admonished Crown counsel for the failure to produce that information previously, and advised counsel that a specific instruction favourable to Mr. Roberts-Stevens would be included regarding that evidence, to ensure balance and trial fairness. Once again, defence counsel fails to appreciate the entire context of the allegations they advance on this application. A reasonable person would not conclude from para. 57 that I was biased against the Applicant, while later, particularly in paras. 113-115, I specifically acknowledge the need to make an instruction in the Applicant’s favour.
124At paras. 113-115 of those reasons I wrote as follows:
113I agree with the defence position on this mid-trial application, that trial fairness considerations now require the jury to be able to consider the statements made to the officer for the truth of their contents, in the same way they will consider the police calls, and to weigh out that evidence in the context of all of the other evidence, and to determine what they make of it all. The evidence of P.C. Brown must be admitted.
114Not only must the jury be permitted to consider Mr. Lypka's statements for the truth in order to ensure trial fairness, but they must also consider those statements as contrasted to Ms. Semchyschyn’s evidence describing what occurred at her house. In the statement to P.C. Brown, the deceased appears to acknowledge having invited Mr. Roberts-Stevens over for a confrontation, compared to Ms. Semchyschyn’s evidence that he was fearful.
115I also accept it is important to consider this evidence, in terms of what Mr. Lypka told Constable Brown, to properly assess the hearsay evidence of Daniel Lypka given by Mr. Bohdan Lypka, who testified that his son Daniel was so afraid that he was holding a baseball bat and he stood by the door because he was worried that Mr. Roberts-Stevens was going to come into his house and beat him up. The jury will simply not be able to properly consider all of this evidence, and other evidence, including Crystal Newman’s evidence, if they only have one side of the story, one “version of the events.”
125In a detailed instruction that was approved by all counsel, the jury was specifically instructed, both mid-trial and in my closing instructions, that they must take P.C. Brown’s qualifying and seemingly contrary evidence into account as they were considering the truth of Daniel Lypka’s statements to his parents about his fear of the Applicant. Unfortunately, there is no acknowledgement or mention of that counterbalancing ruling and instruction in these allegations of bias against me.
126In my view, the record belies and entirely undermines these imaginative allegations by the Applicant. In any event, I am certain that a reasonable member of the public would not reasonably perceive that any aspects of that ruling, taken in context and as a whole, display bias or an apprehension of bias on my part. This is true regardless of whether this event is considered alone or cumulatively with the other allegations.
Conclusion
127In para. 10 of Beard Winter LLP v. Shekhdar, Doherty J.A. summarized his views relative to recusal requests:
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.57
128As the transcript shows, Mr. Midanik conceded during his submissions that none of the alleged events in this case taken on their own, perhaps with the exception of the post-verdict comments to the Lypka family, could or would otherwise raise a reasonable apprehension of bias in the mind of a reasonable person. However, he stated that it was the collectivity of these events that founded the Applicant’s claim that a reasonable person would perceive or apprehend bias or the possibility of bias on my part against the Applicant.
129Crown counsel responded as follows in his concluding submissions:
Simply put, defence, in their submissions, stated that almost all these factors in isolation are nothing, zero. None of them alone comes close to raising any sort of apprehension of bias. But I would suggest there is no evidence showing how they together do, so what Your Honour is left with is a case where zero plus zero plus zero gives you zero, and that’s why the respondent does not feel that Your Honour needs to take the action my friends are suggesting you do, and why sentencing should proceed.
130I find that submission entirely and very fairly captures the flavour of this matter, looked at as a whole. The claims made here are frivolous, as the Crown claimed. Regardless, in these reasons I have recounted what actually occurred in context. I have explained why the defence position is without foundation, and why the Test is not met separately or cumulatively.
131Looking again at S. (R.D.)58, would an informed person, viewing the matter realistically and practically — and having thought the matter through — conclude that it is more likely than not, whether consciously or unconsciously, that I would not decide fairly on the upcoming sentencing hearing of the Applicant? Would that person conclude, without speculating about intentions or perceptions not grounded in the evidence, that there is an air of reality to these allegations?
132I conclude that he or she would not, and that there is no evidence that reasonably informs the contrary conclusion. I find that there is no air of reality to the allegations of bias in this case. Instead, the very fact that no issue was ever taken on any of these matters, save one, during the trial until almost a month after the verdict was announced, raises at least the inference that this entire application was brought for the tactical purpose that Doherty J.A. understatedly describes as “a most objectionable tactic.”
133The Applicant’s recusal application is therefore dismissed. The matter will proceed to the sentencing hearing, now rescheduled for October 19, 2018.
Michael G. Quigley J.
Released: October 19, 2018
COURT FILE NO.: CR-17-50000354-0000
DATE: 20181019
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
Respondent
– and –
TRE ROBERTS-STEVENS
Defendant/Applicant
REASONS FOR decision
Michael G. Quigley J.
Released: October 19, 2018
Footnotes
- 2018 ONCA 552, at paras. 26-30 [Ruthowsky]; see also R. v. Nero, 2016 ONCA 160, 334 C.C.C. (3d) 148, at paras. 28-33, leave to appeal to S.C.C. refused, 36984 (14 July 2016) [Nero].
- 1997 324 (SCC), [1997] 3 S.C.R. 484, at para. 31 [S. (R.D.)], citing Committee for Justice and Liberty et al. v. National Energy Board et al., 1976 2 (SCC), [1978] 1 S.C.R. 369, at pp. 394-95.
- 2017 SCC 31, [2017] 1 S.C.R. 659, at para. 38 [Cody].
- SI/2012-7.
- Cody, at para. 28, citing R. v. Kutynec (1992), 1992 7751 (ON CA), 7 O.R. (3d) 277 (C.A.), at pp. 287-89; R. v. Vukelich (1996), 1996 1005 (BC CA), 108 C.C.C. (3d) 193 (B.C.C.A.).
- R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, at para. 63.
- 2017 ONSC 5337, at para. 22 [Papasotiriou-Lanteigne].
- At paras. 27-38.
- Papasotiriou-Lanteigne, at para. 26.
- For examples of the use of this power, see Papasotiriou-Lanteigne; and R. v. Colpitts, 2017 NSSC 200 [Colpitts].
- Wewaykum Indian Band v. Canada, 2003 SCC 45, [2003] 2 S.C.R. 259, at para. 57.
- Ibid, at para. 58, citing R. v. Bertram, [1989] O.J. No. 2123 (H.C.) [Bertram], also quoted by Cory J. in S. (R.D.), at para. 106.
- At p. 394.
- Ibid, at p. 395, cited in S. (R.D.), at para. 31.
- S. (R.D.), at para. 109.
- R. v. Ibrahim, 2016 ONSC 7665, at para. 67 [Ibrahim], citing Peart v. Peel (Regional Municipality) Police Services Board (2006), 2006 37566 (ON CA), 43 C.R. (6th) 175 (Ont. C.A.), at para. 40, leave to appeal to S.C.C. refused, 31798 (29 March 2007); and R. v. F. (M.) (2001), 2001 28407 (ON SC), 155 C.C.C. (3d) 521 (Ont. S.C.), at para. 47.
- Ibrahim, ibid, at para. 68, citing R. v. Felderhof (2003), 2003 37346 (ON CA), 68 O.R. (3d) 481 (C.A.), at para. 11; R. v. Brown (2003), 2003 52142 (ON CA), 64 O.R. (3d) 161 (C.A.), at para. 105; and S. (R.D.), at para. 117.
- R. v. Hill, 2011 ONSC 3935, 107 O.R. (3d) 40.
- Cabana v. Newfoundland and Labrador, 2014 NLCA 34, 356 Nfld. & P.E.I.R. 103.
- Ibrahim, at para. 65, citing Bertram as cited with approval in S. (R.D.), at para. 111.
- R. v. Elrick, [1983] O.J. No. 515 (H.C.), at para. 14, cited in S. (R.D.), at para. 111.
- [2004] O.J. No. 4590 (S.C.), at para. 9 [Fisher].
- R. v. Millar, 2017 BCSC 323, 2017 D.T.C. 5015, at para. 23, citing Cojocaru v. British Columbia Women’s Hospital and Health Centre, 2013 SCC 30, [2013] 2 S.C.R. 357, at para. 22.
- R. v. Medford, 2018 ONSC 4866, citing Ibrahim, at para. 65.
- Miglin v. Miglin (2001), 2001 8525 (ON CA), 53 O.R. (3d) 641 (C.A.), at para. 29, aff’d in part 2003 SCC 24, [2003] 1 S.C.R. 303, and see S. (R.D.), at para. 113.
- To remind judges of the applicable principles of conduct, the Canadian Judicial Council publishes Ethical Principles for Judges, online: <www.cjcccm.gc.ca/cmslib/general/news_pub_judicialconduct_Principles_en.pdf>, especially at pp. 30-33. See also (Hon.) J.O. Wilson, A Book for Judges (Ottawa: Supply and Services Canada, 1980); (Rt. Hon.) G. Fauteux, Le livre du magistrate (Ottawa: Ministre des approvisionnements et Services Canada, 1980); Canadian Judicial Council, Commentaries on Judicial Conduct (Cowansville, Quebec: Les Editions Yvon Blais, 1991), especially Chapter 7, “The Judge in Court”, at pp. 75-78; and B. Smith, Professional Conduct for Lawyers and Judges (Fredericton: Maritime Law Book, 1998).
- Chippewas of Mnjikaning First Nation v. Chiefs of Ontario, 2010 ONCA 47, [2010] 2 C.N.L.R. 18, at para. 243, leave to appeal to S.C.C. refused, 33613 (8 July 2010), citing Kelly v. Palazzo (2008), 2008 ONCA 82, 89 O.R. (3d) 111 (C.A.), at paras. 20-21; R. v. Kitaitchik (2002), 2002 45000 (ON CA), 166 C.C.C. (3d) 14 (Ont. C.A.), at paras. 12-14; and Confectionately Yours Inc., Re (2002), 2002 45059 (ON CA), 219 D.L.R. (4th) 72 (Ont. C.A.), at para. 28.
- R.S.C. 1985, c. C-46 [Code].
- Transcript of Proceedings at Trial (June 1, 2018), at pp. 9-10.
- Canadian Victims Bill of Rights, S.C. 2015, c. 13, s. 2, s. 15.
- 2008 SCC 6, [2008] 1 S.C.R. 96 [Ferguson].
- R. v. Gardiner, 1982 30 (SCC), [1982] 2 S.C.R. 368; R. v. Albright, 1987 26 (SCC), [1987] 2 S.C.R. 383; and R. v. McDonnell, 1997 389 (SCC), [1997] 1 S.C.R. 948. See generally Clayton Ruby, Sentencing, 2nd ed. (Markham, Ontario: LexisNexis, 2012), at pp. 104-110.
- R. v. Grant, 2016 ONCA 639, 342 C.C.C. (3d) 514, at para. 130.
- See R. v. Carlson, 2018 BCPC 209.
- 2016 ONSC 5151.
- See also R. v. Medford, at para. 24, where a very different kind of emotion was at issue. In that case, Molloy J. refused to recuse herself when faced with several allegations, including that she displayed an expression of disgust on her face when watching a video depicting the terrified complainant, with a knife to her face, being forced to perform fellatio on the accused. While acknowledging that she may have looked "disgusted" or "uncomfortable," she was emphatic that “the expression on [her] face had absolutely nothing to do with any ultimate conclusion [she] reached as to the guilt or innocence of the accused.”
- Transcript of Proceedings at Trial (May 4, 2018), at p. 4.
- Transcript of Proceedings at Trial (May 11, 2018), at p. 3.
- Transcript of Proceedings at Trial (June 1, 2018), at pp. 9-10.
- At para. 26, citing Nero, at para. 33.
- (2004), 2004 34547 (ON CA), 73 O.R. (3d) 40 (C.A.).
- Transcript of Proceeding at Trial (May 29, 2018), at p. 7, lines 16-23.
- Affidavit of Norm Stanford, Exhibit 1, at p. 2.
- Affidavit of Norm Stanford, Exhibit1, at p. 3.
- Transcript of Proceedings at Trial (May 22, 2018), at p. 3.
- At s. 7.
- Transcript of Proceedings at Trial (May 30, 2018), at pp. 9-11.
- See Fisher, at para. 9.
- Also see Ibrahim, at para. 80.
- (1993), 1993 2884 (BC CA), 83 B.C.L.R. 257 (C.A.), at paras. 11-12. See also Confectionately Yours Inc., Re.
- Affidavit of Judith Smith, dated July 24, 2018; Affidavit of Norm Stanford, dated July 24, 2018.
- Transcript of Recusal Hearing (September 12, 2018), at pp. 38-39.
- 2017 SCC 35, [2017] 1 S.C.R. 865.
- Fisher, at para. 9.
- See, for example, R. v. Czerniak, 2010 ONSC 5067, 259 C.C.C. (3d) 353, at paras. 17-19 [Czerniak]; and Fisher, at paras. 12-52.
- I do specifically note that in this case, as in Fisher, efforts were made to schedule a judicial pre-trial with Justice McMahon, the Criminal Team Lead in Toronto, and the actual pre-trial judge following the verdict and after this application was brought. In its correspondence, counsel suggested that if such a pre-trial were convened, they were sure that there would be no need to continue with the recusal motion. The request was denied, and this hearing proceeded.
- 2016 ONCA 493.
- At para. 31.