Court File and Parties

Court File No.: CR-16-07003 Date: 2019-01-09 Ontario Superior Court of Justice

Between: Her Majesty The Queen, Applicant (Respondent on Appeal) And: Suzana Kovacevic, Respondent (Appellant)

Counsel: Peter Westgate, for the Crown Suzana Kovacevic, Self-Represented

Heard: January 8, 2019

Reasons for Decision

MCKELVEY J.:

[1] This case involves an appeal by the appellant who seeks to set aside a peace bond she signed on March 27, 2017, having previously been charged with four Criminal Code offences which included allegations of harassment, assault, willfully damaging a motor vehicle and operating a motor vehicle in a parking lot in a manner dangerous to the public.

[2] The appellant has now brought a motion asking me to recuse myself in this matter. In support of her motion for recusal, the appellant has submitted a 12 page written argument. In addition, oral submissions were heard both from the appellant and the Crown on January 8, 2019. There are a number of issues that have been raised by the appellant on this motion. They include the following:

1. On this appeal I have allowed the Crown to cross-examine her and her duty counsel at the time the peace bond was entered into. At the same time, I struck out subpoenas she had served to cross-examine Crown counsel and a police officer. The appellant argues that I am not interested in hearing from witnesses that have anything to say to support her appeal to this Court. She further argued that I have taken inconsistent positions by allowing the Crown to cross-examine the duty counsel who acted for her at the relevant time and yet denying her the right to subpoena witnesses she wants to cross-examine.
2. The appellant is upset with certain delays which have occurred during the hearing of her appeal.
3. The appellant is frustrated by the fact that I am not able to pronounce her name correctly. Although I have apologized to her for this, she states in her written material, “Furthermore on September 26 th the judge kept mispronouncing my last name which is not that difficult to pronounce which was a clear indication to me that McKelvey was not intelligent enough to adjudicate this matter. If he can’t be smart enough to pronounce someone’s last name it was clear to me that he can’t be smart enough to apply law and this became evident the very next day”.
4. The appellant objects to my refusal to assign another judge to this case.
5. In oral argument the appellant’s position was that to really understand this case and to apply the law properly, the judge needed to have experience with multiple mistresses and to have been in a situation where he then terminates the employment of the mistresses and subsequently assaults them.

[3] As part of her relief on this motion, the appellant asks that Justice Bird (who dealt with some preliminary matters) be seized of this appeal going forward, “as she seems to be the only judge so far who has shown some common legal sense which judge McKelvey neither seems to have nor is capable of displaying in the courtroom”.

[4] The law in relation to recusal motions is well settled. It is set out at para. 111 of the Supreme Court of Canada decision in R. v. R.D.S., [1997] 3 S.C.R. 484 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. . . . The test is “what would an informed person, viewing the matter realistically and practically -- and having thought the matter through -- conclude.

[5] The Supreme Court notes that this test contains a two-fold objective element:

The person considering the alleged bias must be reasonable, and the apprehension of bias itself must also be reasonable in the circumstances of the case.

[6] The court notes that the onus of demonstrating bias lies with the person who is alleging its existence. All judges are entitled to the same presumption of judicial integrity and the same high threshold for a finding of bias.

[7] Lack of success in arguments before a trial judge is not an indicator of judicial impropriety. This conclusion is supported by the Superior Court decision of Justice Hill in R. v. Fisher, [2004] O.J. No. 4590. It is also supported by the Court of Appeal decision of Justice Doherty in Beard Winter LLP v. Shekhdar, 2016 ONCA 493, [2016] O.J. No. 3257. In that case, Justice Doherty states as follows,

The moving party is certainly entitled to his own opinion about the adequacy of the reasons and the correctness of those decisions. However, the personal opinion of the losing litigant as to the quality and correctness of the court’s decision counts for little when assessing a partiality claim. It is understandable that losing litigants sometimes firmly believe that the court got it all wrong. To jump from that conclusion to allegations of racism and corruption is irresponsible and irrational.

[8] In the Beard Winter decision Justice Doherty also comments that judges do the administration of justice a disservice by simply yielding to entirely unreasonable and unsubstantiated recusal demands. He notes that litigants are not entitled to pick their judge. They are not entitled to effectively eliminate judges 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.

[9] To understand the issues on this motion I have prepared a chronology of the relevant events which have taken place in Superior Court:

1. June 6, 2018 – The appellant attended before Justice Bird. According to her endorsement, the appellant had brought an application to have her peace bond terminated or vacated based on the fact that she did not understand the implications of signing it. Justice Bird made a number of procedural orders so that the appeal could be heard. She adjourned the matter to August 8, 2018.

2. August 8, 2018 – The appellant appeared before Justice Di Tomaso who made an order for exchange of factums and reply material. The matter was adjourned to September 26, 2018 for hearing of the appeal. The estimated time for the appeal was three hours.

3. September 26, 2018 – The matter came before me for purposes of hearing the appeal. Initially the Crown raised an issue that the appellant had not followed the Superior Court protocol for allegations of ineffective assistance of counsel. The Crown sought an adjournment so that a number of steps could be taken including obtaining all relevant transcripts, arranging for cross-examination of the appellant and notifying trial counsel about the allegation of ineffective assistance of counsel. Both parties agreed that in the circumstances the appeal should be adjourned. I advised the parties that I was available on November 14 and 15, 2018. Initially both parties agreed to these dates, but subsequently the appellant stated that she wanted the hearing to be scheduled within one month, which would mean by the end of October. She stated that she had been waiting for the appeal to be heard for some time and believed the peace bond was affecting her employment and family litigation. I had no availability to meet the deadline requested by the appellant, but concluded that it was preferable not to re-assign this appeal to another judge. In my endorsement I state,

   She stated that she has been waiting for the appeal to be heard for some time and believes the peace bond is affecting her employment and family litigation. I have no availability at the end of October and have concluded that it is preferable not to re-assign this appeal to another judge. I previously reviewed the material and judicial efficiency would best be served by remaining seized of the matter. A further two week delay in the hearing of the appeal is in the circumstances required given the court’s availability.

   It was also noted in the endorsement on September 26 that the Crown wished to cross-examine the appellant on her affidavit. She agreed to this, but objected to her duty counsel giving evidence about discussions relating to her entering into the peace bond.

4. September 27, 2018 – Oral argument was heard on September 27 with respect to the right of the Crown to examine duty counsel on the issue of ineffective assistance of counsel. The endorsement made by me on September 27, 2018 includes the following,

   For oral reasons given today I find that the appellant has waived privilege regarding discussions with duty counsel about entering into a peace bond. The duty counsel is ordered to attend on the return date for the appeal. This order is withdrawn if the appellant elects not to pursue the issue of ineffective assistance of counsel. In this situation solicitor-client privilege would continue. Further, for oral reasons given today the cross-examination of the appellant shall take place on the first day of the appeal hearing.

   The appellant advised that she wishes to cross-examine the Crown Attorney in this case. She has been advised that she is at liberty to serve a subpoena on the Crown. The Crown has advised in this situation they will bring a motion to quash the subpoena. Having dealt with some additional matters, this matter was then adjourned to November 14, 2018.

5. October 31, 2018 – This matter was spoken to on October 31, 2018 before Justice O’Connell. It was noted that this matter was scheduled to proceed before me on November 14 and 15, 2018. However, the duty counsel who was scheduled to testify was out of the country on those dates. The matter was adjourned to be spoken to before me on November 14 and 15, 2018 to deal with issues including scheduling.

6. November 14, 2018 – On this date two applications were heard. The Crown brought an application to quash the subpoena served on Mr. Dale, who was a Crown Attorney involved in prosecuting the criminal charges against the appellant. For oral reasons, I granted an order quashing the subpoena against Mr. Dale as well as quashing the subpoena against Detective Greer, who was a police officer involved in the investigation. On this date the appellant advised that she would be bringing an application before the Superior Court that I be recused. In my endorsement I noted that the matter was adjourned to January 8, 9 and 10, 2019 to continue the appeal.

[10] I turn now to the issues raised by the appellant. I recognize that the appellant feels strongly that I have erred in my decision to allow the Crown to examine her duty counsel and at the same time to quash the subpoenas that she has served on Mr. Dale and Detective Greer. She feels strongly that these decisions are inconsistent and that I erred in my analysis. The appellant is not without a remedy, however. If I have erred in my rulings on the admissibility of evidence, these can be considered on appeal. As suggested by Justice Doherty in the Beard Winter case, the personal opinions of the appellant as to the quality and correctness of my decisions does not support a conclusion that there is a reasonable apprehension of bias.

[11] I recognize that there have been some delays and adjournments in the hearing of this appeal. However, there are multiple factors which account for these delays. The initial hearing was scheduled to take three hours and this time frame was allotted by the trial coordinator. As it turned out this time allocation was inadequate given the procedural issues that were raised at the commencement of the appeal. The appellant suggests in her written material that,

Judge McKelvey blatantly disregarded my protest saying that he is not available before November 14 and 15 and when I asked for this to be scheduled earlier in front of a different judge he simply disregarded it saying that he is seizing himself as of right now so the option for it to go in front of another judge is no longer possible. It was very obvious that judge McKelvey for some very strange and what seems to be unjust reason very much wanted to adjudicate this appeal so I got stuck with unjust and unreasonable adjournment duration of 1.5 months.

[12] As I made clear in my reasons in the endorsement on September 26, the reason why I remain seized of the matter was for reasons of judicial efficiency, having previously reviewed the material. I felt that judicial efficiency would best be served by remaining seized. Further, I concluded that a further two week delay beyond the amount of time the appellant was willing to consider was not unreasonable in the circumstances.

[13] The appellant is obviously frustrated that I am not able to pronounce her name correctly. As she points out in her material, I have apologized to her for this. Given the extent of concern that she has expressed about this, I advised both parties on January 8 that I would refrain from using their names during oral argument. I would simply refer to them as the appellant (or applicant) and the Crown.

[14] I further take issue with the assertion by the appellant that the trial judge to really understand this case and apply the law properly needs to have experience with multiple mistresses. In my view, a reasonable observer would not see this as a reasonable requirement for a judge hearing the appeal.

[15] I also note that in her reply submissions the appellant volunteered that I have never cut her off in terms of making submissions and have never refused to hear her arguments. She also volunteered that I have never displayed any hostility towards her.

[16] Much of the appellant’s argument, both in writing and orally, dealt with ways in which she alleges she has been treated harshly by the complainant who apparently contacted the police and by the Crown. These issues have nothing to do with my involvement in the case as my only involvement started on September 26, 2018. These issues therefore do not have any relationship to my involvement in the case.

[17] I have concluded that there is no air of reality to the appellant’s allegations of bias. While it is tempting to consider a recusal for the sake of convenience, I am mindful of the larger interests at stake here. As pointed out by Justice Doherty, judges do the administration of justice a disservice by simply yielding to entirely unreasonable and unsubstantiated recusal demands.

[18] I have concluded there is no air of reality to the appellant’s allegations of bias. I am dismissing the appellant’s motion and her request that I recuse myself in this matter.

Released: January 9, 2019 Justice M. McKelvey