Court File and Parties
NEWMARKET COURT FILE NO.: CR-16-6638-MO DATE: 20190322 CORRIGENDA DATE: 20190322 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN – and – NEIL DAVIS Applicant
Counsel: A. Ghosh, for the Crown M.A. Moon and E. Perchenok, for the Applicant
HEARD: March 20, 2019
Endorsement
Text of original decision has been amended with changes appended.
de sa J.
[1] The accused, Mr. Neil Davis, has brought an application seeking a declaration that the trial judge has lost jurisdiction over the accused and the proceedings, and an order in the nature of prohibition as against the trial judge. The Applicant takes the position that the actions of the trial judge during the course of the trial are such that a reviewing court could find that a “reasonable apprehension of bias” exists.
[2] The offences date back to August 31, 2016. The trial was originally scheduled to commence on April 9, 2018 in the Ontario Court of Justice in Newmarket before Justice Rose. After being arraigned on the charges, the Applicant disputed the court’s jurisdiction to hear the matter. Given that the offences occurred in the Central West Region and Toronto, the Applicant took the position that the Ontario Court of Justice in Newmarket (Central East) lacked jurisdiction to hear the trial.
[3] The Applicant’s pre-trial motion was denied. As a result, the Applicant filed a Notice of Prohibition with Certiorari in aid with the Superior Court of Justice in Newmarket.
[4] The matter came before Justice Di Luca. After hearing argument on the issue, the application was dismissed by Justice Di Luca on July 31, 2018. Justice Di Luca held that there was no issue regarding the court’s jurisdiction to hear the trial (in Newmarket). Justice Di Luca held that while an issue of venue could potentially be raised before the trial judge, jurisdiction was not a concern. He ordered that the trial continue before Justice Rose.
[5] The Applicant then appealed the decision of Justice Di Luca to the Court of Appeal. As part of that appeal, the Applicant also sought an order that the trial proceedings be stayed in the interim pending the determination of the appeal before the Court of Appeal.
[6] On September 5, 2018, Applicant’s counsel appeared before Justice Rose. Applicant’s counsel took the position that the proceedings were stayed pending the determination of the appeal. Justice Rose disagreed. Ultimately, three consecutive days of trial were obtained commencing on November 13, 2018.
[7] On October 12, 2018, a single judge of the Court of Appeal declined to make the order to suspend the trial proceedings, but ordered that the appeal be expedited. The appeal was heard and dismissed by the Court of Appeal on November 9, 2018. In dismissing the appeal, the Court commented at para. 15 of its decision:
It would appear that the appellant has several other pre-trial applications in mind for the trial judge. No doubt experienced counsel will proceed with these motions in a timely way on the basis of proper material. That said, counsel should also bear in mind the teachings of Awashish that lack of success is not the equivalent, or even a reasonable facsimile, for jurisdictional error. There is a general prohibition against interlocutory appeals in criminal cases. Accessing extraordinary remedies for every perceived legal error violates this principle and is in direct tension with the approach set out in R. v. Jordan, 2016 SCC 27, which exhorts all principals in the criminal justice process to assist in the timely and informed resolution of allegations of crime. [1]
[8] The trial continued before Justice Rose on the dates scheduled in November but the trial was not concluded. Continuation dates for the trial were scheduled for March 25, 2019.
[9] The Applicant then filed this application on March 9, 2019. Pursuant to Rule 43.03(5) of the Criminal Proceedings Rules, the filing of the application automatically suspends the proceedings that are the subject of the application, subject to an order by this Court directing that the proceedings continue.
[10] The matter came before me on March 20, 2019. While the matter was scheduled to be heard on March 20, 2019, the earliest date available to Applicant’s counsel to argue the matter was June 5, 2019. The agent in attendance was not prepared to argue the substance of the application. Accordingly, a date for hearing was scheduled for June 5, 2019.
[11] As part of its responding record on the application, the Crown filed materials which included the underlying trial proceedings before Justice Rose. The Crown takes the position that a review of the underlying record makes clear that there is no merit to the application. The Crown has requested that the application be dismissed summarily given the history of the proceeding and the absence of merit.
[12] The Crown asks that even if I am not prepared to dismiss the matter entirely, that I order that the trial continue before Justice Rose on March 25, 2019 pursuant to Rule 43.03.(6) of the Criminal Proceedings Rules.
[13] Given the Crown’s position, I invited submissions in writing from Applicant’s counsel on Rule 43.03(6) noting that I would release a decision on the Rule 43.03(6) issue by Friday, March 22, 2019.
[14] I received submissions from Applicant’s counsel yesterday. The Applicant submits that precedent establishes that where there “might be merit” to the main application which strikes at the “jurisdictional core” of the tribunal or the magistrate, a Crown application under Rule 43.03(6) should be denied.
[15] Obviously, the threshold for establishing a reasonable apprehension of bias is high. There is a strong presumption that Judges will carry out their judicial functions fairly, independently, and impartially.
[16] Having reviewed the underlying trial record, I agree with the Crown that the application itself does not appear to have any merit. I do not agree that the conduct of the trial judge outlined in the Applicant’s materials creates a “reasonable apprehension of bias”.
[17] I am not prepared to have the trial held up any further in the circumstances. The trial is to continue before Justice Rose on March 25, 2019 with a view to completing it.
[18] The scheduled hearing date for the application can remain in place for June 5, 2019. I recognize that the trial before Justice Rose may be finished by this date, and the issues raised in the application may become moot. Should that be the case, the Applicant will be free to pursue the issue at the conclusion of the trial on appeal.
Justice C.F. de Sa Released: March 22, 2019