COURT FILE NO.: 28/18
DATE: 2019-02-04
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Applicant
– and –
ROGER CRAIG SHORT
Respondent
Krista Leszczynski and Nicole Stoner, for the Applicant
David G. Bayliss, for the Respondent
HEARD: January 31, 2019.
REASONS ON APPLICATION FOR RECUSAL
THOMAS, RSJ.:
[1] The Applicant seeks an order that I recuse myself as trial judge in this matter, or alternatively, that I find a violation of his s.7 and s.11(d) Charter rights and remove myself as a remedy granted by operation of s.24(1) of the Charter.
[2] This is the Applicant’s third trial. His first trial before Justice John Desotti resulted in a hung jury on May 26, 2012. He was convicted on February 27, 2013 of first degree murder in a trial before Justice Joseph Donohue. On January 2, 2018 the Ontario Court of Appeal quashed the conviction and returned the matter for a new trial based on a finding of miscarriage of justice.
[3] The third trial commenced before me on October 15, 2018 with the hearing of the Applicant’s motion seeking a stay of proceedings based on an allegation of abuse of process and violations of s.7, 8, 9, 11(d) and 24 of the Charter.
[4] On December 3, 2018 I commenced hearing the Applicant’s second motion to adduce evidence of two separate alternative suspects.
[5] On December 20, 2018 I provided decisions on both motions including detailed written reasons. I dismissed the motion to stay the proceeding and granted the Applicant leave to adduce evidence regarding one of the two alternative suspects.
[6] The grounds for this application are captured by paragraphs 8 and 9 of the notice of motions which are reproduced below:
The Applicant, through counsel, with great regret, states that the Honourable Justice B. Thomas is not indifferent as between Her Majesty the Queen and the Applicant and that, based on his conduct from the Bench of the Superior Court during the Applicant’s trial thus far, Justice Thomas has created an apprehension of bias calling for recusal and, in the alternative, the Applicant respectfully submits that the learned Justice Thomas has created an apprehension of bias that negates the fairness of a criminal trial over which he presides, and thereby violates ss. 7 and 11(d) of the Charter of Rights and Freedoms. The Applicant consequently brings this application for Recusal and Constitutional remedy pursuant to Common Law principles and s.24(1) of the Charter of Rights and freedoms [sic].
Specifically, the Applicant asserts that palpably unreasonable findings of fact on the Stay Application ruling with respect to the police and Crown conduct during the second trial has caused a reasonable apprehension on the part of the Applicant that the Honourable Justice appears biased in favor of the prosecution and, particularly in circumstances where several rulings are to be decided before evidence on the trial proper begins, it would be inappropriate for him to continue as the trial judge.
[7] In essence, the application suggests that in my findings of fact I misconstrued or overlooked evidence, made palpably unreasonable findings of fact or no findings of fact at all. These errors, it is argued, were always to the benefit of the prosecution and must result in a reasonable apprehension that I am biased in favour of the prosecution.
[8] The Applicant, in support of the order sought, raises multiple instances in my Reasons where I rejected the position of the defence in the motions argued. The Applicant supplies a view of the evidence which he states could not support my findings of fact. In effect, in the motion the Applicant seeks to reargue the issues I have already decided.
[9] While the Applicant frames his argument in terms of a reasonable apprehension of bias, there can be little doubt that the claim is one of actual bias. The factum of the Applicant concludes with the following statement:
The timber of the findings and errors in recalling the evidence suggest they are result driven, demonstrate an interest in the outcome of allegations of state misconduct, and are indicative of a closed mind such that advancing any evidence or submissions in variance to the views so firmly held with respect to Crown and police integrity are futile.
[10] I reject the allegations and stand by my rulings in fact and law. I carefully considered the Applicant’s position on the issues raised and was not persuaded. These issues are for the Court of Appeal and in fact it would be inappropriate for me at this point to comment on my Reasons already delivered. (R. v. Teskey 2007 SCC 24 para. 18).
[11] The application seems to suggest that since other motions are to be argued he needs to remove me as the trial judge now. In fact there are multiple motions remaining. Counsel have alerted me to motions regarding after the fact conduct of the Applicant, hearsay and prior discreditable conduct, statements of the accused and proposed evidence of a Mr. Big operation that could be characterized as evidence suggesting “consciousness of innocence.”
[12] The upcoming motions, for the most part, involve issues of law. Once these multiple motions are concluded, the jury will become the ultimate fact finders.
[13] I am quite aware that Doherty J.A. found the second trial of the Applicant to be a miscarriage of justice. It is obviously critical to ensure that this does not recur. As the trial judge on the third trial, I am ever conscious of my duty to ensure the fairness of the proceedings, including the proceedings on the pre-trial motions. I will continue to discharge this duty in the upcoming motions and the trial before the jury. While I reject the allegation of bias, the fact of the allegation will, in no way, affect my perception of the accused, his counsel, or the issues that remain to be determined.
[14] The application is without merit and is dismissed.
“Regional Senior Justice B. G. Thomas”
Regional Senior Justice B. G. Thomas
Released: February 4, 2019.
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
ROGER CRAIG SHORT
REASONS ON APPLICATION FOR RECUSAL
Thomas RSJ.
Released: February 4, 2019.