ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN Respondent
– and –
R.M.P. Applicant
Counsel:
Brian Holowka, for the Respondent
Cedric Nahum, for the Applicant
HEARD AT OTTAWA: January 16, 2019
Ruling on Mistrial application
RYAN BELL J.
Nature of the Application
1In January 2018, the applicant was found guilty of two counts of sexual assault. The Crown is seeking an order under s. 752.1 of the Criminal Code that the applicant be remanded for an assessment for use as evidence in a dangerous offender application (s. 753) or a long-term offender application (s. 753.1). During the course of the s. 752.1 application (specifically, during the Crown’s reply submissions), concerns were raised by applicant’s counsel as to the applicant’s fitness to participate in the s. 752.1 application. At the request of applicant’s counsel, I ordered that an assessment of the applicant be conducted under the Mental Health Act, R.S.O. 1990, c. M.7. A fitness hearing commenced on December 11, 2018. Dr. Mathieu Dufour, a forensic psychiatrist, was summonsed by the applicant to give evidence at the hearing.
2On December 14, 2018, during the course of the continued fitness hearing, applicant’s counsel advised that he was applying for a mistrial based on what he contended was a reasonable apprehension of bias on the part of the court. Applicant’s counsel made brief submissions and argued that I should deal with the matter at that time. Given the serious nature of the allegation, I directed applicant’s counsel to serve and file a formal application, together with the materials upon which he intended to rely. I reviewed the applicant’s materials as well as the Crown’s responding materials in advance of the hearing on January 16, 2019.
3At the hearing, applicant’s counsel reiterated his position that the court ought to have addressed his application on December 14, 2018. Applicant’s counsel relied upon his December 14, 2018 submissions, as supplemented by his January 16, 2019 submissions. In addition to the allegation of reasonable apprehension of bias, applicant’s counsel contended that the court had displayed actual bias.
4On January 16, 2019, after hearing the submissions of applicant’s counsel and Crown counsel, I dismissed the application, with written reasons to follow. These are those reasons.
Test for Reasonable Apprehension of Bias
5In R. v. Valente (No. 2), 1985 CanLII 25 (SCC), [1985] 2 S.C.R. 673, at p. 685, Le Dain J. held that the concept of impartiality describes “a state of mind or attitude of the tribunal in relation to the issues and the parties in the particular case” and that “[t]he word ‘impartial’… connotes absence of bias, actual or perceived” (referred to in R. v. S. (R.D.), 1997 CanLII 324 (SCC), [1997] 3 S.C.R. 484, at para. 104).
6In R. v. S. (R.D.), Cory J., at para. 105, contrasted the concept of impartiality with bias in the following terms: “…bias denotes a state of mind that is in some way predisposed to a particular result, or that is closed with regard to particular issues.” In R. v. Bertram, [1989] O.J. No. 2123 (H.C.), Watt J., as he then was, defined bias as “a leaning, inclination, bent or predisposition towards one side or another or a particular result” and “[i]n its application to legal proceedings, it represents a predisposition to decide an issue or cause in a certain way which does not leave the judicial mind perfectly open to conviction” (referred to in R. v. S. (R.D.), at para. 106).
7The test for reasonable apprehension of bias on the part of the trial judge was explained by de Grandpré J. in Committee for Justice & Liberty v. Canada (National Energy Board), 1976 CanLII 2 (SCC), [1978] 1 S.C.R. 369, at pp. 394-395:
…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.
8The test for reasonable apprehension of bias contains a two-fold objective element: (i) the person considering the alleged bias must be reasonable, and (ii) the apprehension of bias must also be reasonable in the circumstances of the case (R. v. S. (R.D.), at para. 111). In addition:
…the reasonable person contemplated by de Grandpré J., and endorsed by Canadian courts is a person who approaches the question of whether there exists a reasonable apprehension of bias with a complex and contextualized understanding of the issues in the case. The reasonable person understands the impossibility of judicial neutrality, but demands judicial impartiality…
Before concluding that there exists a reasonable apprehension of bias in the conduct of a judge, the reasonable person would require some clear evidence that the judge in question had improperly used his or her perspective in the decision-making process; this flows from the presumption of impartiality of the judiciary. There must be some indication that the judge was not approaching the case with an open mind fair to all parties. Awareness of the context within which a case occurred would not constitute such evidence; on the contrary, such awareness is consistent with the highest tradition of judicial impartiality (R. v. S. (R.D.), per L’Heureux-Dubé and McLachlin JJ., at paras. 48-49).
Grounds for the Application
9The application identifies the following as “events” that would “lead any reasonable member of the public to fear that the Court holds a bias in favour of the Crown and that the applicant is not receiving a fair trial”:
- granting the Crown’s request for an adjournment on December 11, 2018;
- granting the Crown permission to cross-examine Dr. Dufour on his understanding of the law;
- granting the Crown permission to cross-examine Dr. Dufour on his interpretation of the legal test of “fitness to stand trial”;
- denying the applicant the opportunity to re-examine the areas of Dr. Dufour’s evidence where he had been “improperly permitted to opine on the law”;
- sustaining the Crown’s objection, thereby denying the applicant the opportunity to ask a question, without the court having heard the question being objected to; and
- in failing to pay attention to what is taking place during the proceeding, agreeing with the Crown.
10At the hearing, applicant’s counsel advised he was relying on an additional event: the court’s failure to specifically address in an oral ruling, what applicant’s counsel referred to as the Crown’s “lie” or “fabrication” relating to a request for transcripts.
(i) The Events of December 11, 2018
11At the fitness hearing on December 11, 2018, the applicant called Dr. Dufour who had been served with a summons in connection with his appearance at the hearing. At approximately 11:35 a.m., Crown counsel raised the issue of scheduling. Both the Crown and the defence had been advised that Dr. Dufour was not available past noon on December 11, 2018. Applicant’s counsel urged me to proceed with Dr. Dufour’s evidence, notwithstanding the doctor’s scheduling difficulties. After hearing from the Crown and the defence, as well as Dr. Dufour, I ruled that Dr. Dufour’s evidence would end at noon that day. Applicant’s counsel continued with and completed his examination in chief of Dr. Dufour.
12The fitness hearing resumed on December 14, 2018 with the Crown’s cross-examination of Dr. Dufour.
13It is the position of applicant’s counsel that the Crown requested the adjournment on December 11, 2018; the Crown disputes this position. Applicant’s counsel submitted that no member of the public would consider that the court acted in a reasonable way in granting the adjournment. Counsel further submitted that in granting the adjournment, the court has demonstrated that it has “no idea” how important a fitness hearing is.
(ii) Rulings Made During Dr. Dufour’s Cross-examination and Re-examination
14Dr. Dufour is a practising forensic psychiatrist. The applicant was subject to a 30 day court-ordered assessment and was admitted on the Forensic Unit at the Royal Ottawa Mental Health Centre from September 27 to October 29, 2018. Dr. Dufour and a senior psychiatry resident prepared a psychiatric assessment. On December 4, 2018, the applicant was brought to the Royal Ottawa Mental Health Centre for a further court-ordered assessment. The applicant was seen on that occasion by Dr. Dufour and the senior psychiatry resident.
15During the course of Dr. Dufour’s cross-examination by Crown counsel, Dr. Dufour was asked: “So, when someone is psychotic that can mean that they are unfit if for example, the psychosis is such that the thought process is not just disorganized, but it is too disorganized to allow that person to participate in the proceedings, correct?” Applicant’s counsel objected on the basis that the question posed was a legal question, and not proper for the witness. I overruled the objection, stating that I agreed with Crown counsel’s submission that she was entitled to put questions to Dr. Dufour as to the role psychosis plays in the assessment of fitness.
16On cross-examination, Dr. Dufour was also asked the following: “And again, someone who is psychotic may be experiencing hallucinations, but when we are thinking of their fitness the issue is whether those hallucinations are occurring to such a degree that they are distracting the person from the proceedings, would you agree with that?” In his response, Dr. Dufour referred to “when – in my experience – that these patients have been found unfit to stand trial by the court.” At this point, applicant’s counsel objected on the basis that the witness was purporting to provide his understanding of the case law. Following submissions from Crown counsel and reply submissions from applicant’s counsel, I ruled the evidence is relevant to Dr. Dufour’s opinion and allowed the questions.
17On re-examination, Dr. Dufour was asked by applicant’s counsel whether he had reviewed “any case law that refers to the test to be applied following a conviction when assessing fitness?” Crown counsel objected to the question, including on the basis that the matter should have been canvassed on examination-in-chief. I ruled that the basis for Dr. Dufour’s opinion was a matter that ought to have been canvassed fully on examination-in-chief but I permitted applicant’s counsel some leeway on re-examination and allowed the question to be put.
18Applicant’s counsel submitted that these rulings were “improper” and contribute to a reasonable apprehension of bias.
(iii) Demonstrating Inattentiveness
19Applicant’s counsel submitted that during re-examination, the court “followed the Crown blindly” and sustained the Crown’s objection to an anticipated question. The following exchange occurred:
Q. In this case, the assessment came to you as a section 22 assessment?
A. So, the initial assessment for the September assessment, it came as a section 22.
Q. Right. And in G.B., it doesn’t come as a section 22, it comes in the – the regular – fitness provisions?
20At that point, Crown counsel objected. The court sustained the objection on the basis that the question was not proper re-examination. Applicant’s counsel maintained that he had not completed his question. Applicant’s counsel then advised he was asking for a mistrial on the basis that the court “has been demonstrating extreme bias towards myself and my colleague” in accepting “any objection made by [Crown counsel],” including my ruling on a question applicant’s counsel maintained he had not yet asked.
(iv) Oral Ruling on the Section 11(b) Application
21Applicant’s counsel submitted that I failed to specifically address what he characterized as a “clear lie” on the part of the Crown and that my failure to do so is “very concerning” and demonstrates that the court has no interest in providing the applicant with a fair hearing.
22At the outset of my ruling on the s. 11(b) application on June 4, 2018, I noted that applicant’s counsel had, that morning, raised an issue regarding the date on which certain transcripts were ordered by the Crown. I noted that applicant’s counsel had characterized the Crown’s statements in relation to its adjournment request on April 9, 2018 as false. In my oral ruling, I stated that the transcript from April 9, 2018 made clear that the Crown’s adjournment request was not simply for the purpose of ordering transcripts. I went on to state, “I wish to emphasize that I find no inappropriate behaviour or improper behaviour by the Crown with respect to the adjournment request on April 9, 2018, an adjournment which I granted.”
Analysis
23The presumption of impartiality carries considerable weight: “[t]he law will not suppose the possibility of bias in a judge, who is already sworn to administer impartial justice, and who is already sworn to administer impartial justice, and whose authority greatly depends upon that presumption and idea” (R. v. S. (R.D.), at para. 32).
24As Aitken J. observed in R. v. Louangrath, 2014 ONSC 1471, at para. 10, “[t]he duty of a trial judge is to use her best efforts to make rulings which are in accordance with the law – nothing more, nothing less.” Rulings made during the trial – and, in this case, during the course of a fitness hearing – which go against the applicant do not equate with a reasonable apprehension of bias.
25A trial judge is entitled to manage the trial and control the procedure to ensure that the trial is effective, efficient and fair to both sides (R. v. Snow (2004), 2004 CanLII 34547 (ON CA), 73 O.R. (3d) 40 (C.A.), at para. 24). Accommodating the schedule of a forensic psychiatrist who deals with a vulnerable population, who was summonsed by the defence, and who apprised the defence and the Crown of his scheduling difficulties on December 11, 2018, does not equate with a reasonable apprehension of bias. The fitness hearing resumed three days later with Dr. Dufour’s cross-examination.
26The applicant’s assertion that the court failed to address improper behaviour on the part of Crown counsel is not borne out by the record. At the outset of my oral ruling on the s. 11(b) application, I specifically found no inappropriate or improper behaviour on the part of Crown counsel with respect to the Crown’s adjournment request on April 9, 2018.
27The applicant’s assertion that the court “followed the Crown blindly” in sustaining an objection to a question not yet asked is not borne out by the record. The question was asked, objected to, and ruled upon. Unfavourable rulings and findings do not establish bias or a reasonable apprehension of bias.
28Applicant’s counsel relied on the same events in support of his submission that the court is actually biased against the applicant. Objectivity and fairness are the hallmarks of the judicial function. An allegation of actual bias attacks the judicial function and questions the personal integrity of the judge. There is no merit to this allegation.
Result
29For these reasons, I dismissed the application on January 16, 2019.
Madam Justice Robyn M. Ryan Bell
Released: January 31, 2019
COURT FILE NO.: 15-SA5126
DATE: 2019/01/31
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN Respondent
– and –
R.M.P. Applicant
RULING ON MISTRIAL APPLICATION
Justice Ryan Bell
Released: January 31, 2019