COURT FILE NO.: CR-18-1309

DATE: 20210305

SUPERIOR COURT OF JUSTICE - ONTARIO

BETWEEN:

HER MAJESTY THE QUEEN

Crown (Respondent)

v.

DEVIN BEALS

Defendant (Applicant)

RESTRICTION ON PUBLICATION

Pursuant to subsection 648(1) of the Criminal Code, no information regarding this portion of the trial shall be published in any document or broadcast or transmitted in any way before the jury retires to consider its verdict, by Order of The Honourable Regional Senior Justice Ricchetti on March 8, 2021.

BEFORE: Ricchetti, RSJ.

COUNSEL: B. McGuire for the Crown/Respondent

R. Gadhia for the Defendant/Applicant

HEARD: January 25 and February 4, 2021

RULING ON DEFENCE RECUSAL APPLICATION

THE APPLICATION.. 3

BACKGROUND.. 3

THE EVIDENCE ON THIS APPLICATION.. 4

THE LAW... 5

Bias and Reasonable Apprehension of Bias. 5

Judicial Assignments. 8

Role of Trial Judge and Counsel during a trial 9

Recusal Applications and Threats of Recusal Applications as a tactic. 12

POSITION OF THE PARTIES. 13

Defence's Position. 13

Crown’s Position. 13

ANALYSIS. 14

The Defence Affidavits. 14

Ms. Sivarajah's Affidavit 14

Lack of Impartiality. 14

Subjective Opinions. 16

Deliberately incomplete or lacking context 17

Conclusion. 17

Mr. Beals' Affidavit 20

Delay in bringing the Recusal Application. 22

Prior threat of bias. 23

The Preliminary Hearing. 24

The first trial 26

Applicant’s Submissions. 27

General Allegations of Bias. 27

Adverse Rulings. 27

The Trial Judge’s Tone. 28

Trial Efficiency. 30

Specific Incidents as evidence of bias: 32

a) Cross-examination of Mr. Bitar (February 13, 2020) 33

b) Examination in Chief of Mr. Bitar (February 11, 2020) 49

c) Cross-Examination of Det. Heyes (February 24, 2020) 52

d) The Victim's Character (February 12, 2020) 56

e) The Edited Statements (February 18, 2020) 62

f) The Cross Examination of Mr. Suri (March 4, 2020) 65

g) A Good Faith Basis to ask a question in cross-examination (March 5, 2020) 78

Cumulatively, does the evidence demonstrate bias or reasonable apprehension of bias?. 84

Conclusion. 84

THE APPLICATION

[1] This is an application by the Defendant, Mr. Devin Beals, for the recusal of Madam Justice Woollcombe as the trial judge in the upcoming second trial, after a mistrial. The Defence alleges that Madam Justice Woollcombe demonstrated bias or a reasonable apprehension of bias against her and Mr. Beals during the first trial.

[2] For the reasons that follow, this application is dismissed.

BACKGROUND

[3] There are multiple accused in this homicide trial. Mr. Devin Beals, one of the accused, is charged with first degree murder and aggravated assault.

[4] All accused are being tried together. Each accused is represented by counsel.

[5] The first jury trial commenced on January 27, 2020. Madame Justice Woollcombe was the presiding trial judge.

[6] The trial continued until March 16, 2020, at which time, because of the COVID-19 pandemic, the trial was adjourned to June 1, 2020. Thereafter, there were several subsequent adjournments. On September 1, 2020, the trial judge declared a mistrial. The second jury trial is scheduled sometime into the future.

[7] During a pre-trial to schedule the second jury trial, there was a discussion regarding who the trial judge would be on the second trial. The selection of the trial judge is not a decision made by counsel. Nevertheless, as has been done in a few other cases, the pre-trial judge provided counsel several lists of available trial judges on a potential new trial date. The list included Justice Woollcombe. Counsel could not agree on any specific judge.

[8] As a result, in early November 2020, Justice Woollcombe was assigned to preside over the second jury trial. The second jury trial is scheduled for March 29, 2021 but will not likely occur until much later. The Defence advised it wished to bring an application that Justice Woollcombe be recused as a trial judge in the second trial, alleging that she had demonstrated bias, or a reasonable apprehension of bias, in the first trial.

[9] The Defendant brought this application on November 18, 2020. There is no evidence that any other defendant (or counsel) in this trial alleges that Madame Justice Woollcombe was biased or seeks her recusal from the second trial.

THE EVIDENCE ON THIS APPLICATION

[10] The evidence on this application consists of:

a) the affidavit of Mr. Devin Beals dated November 30, 2020;

b) the affidavit of Ms. Thaxsheni Sivarajah dated November 30, 2020. Ms. Sivarajah is a lawyer in the offices of R. Roots Gadhia, counsel for Mr. Beals in the first trial. Ms. Sivarajah became a lawyer in Ontario on June 20, 2020 but was previously a lawyer in the State of New York. Ms. Shivarajah was, during portions of the first trial, present and assisted Ms. Gadhia, Mr. Devin Beals’ counsel at the first trial;

c) The transcripts of the certain days, set out in the Application Record, from the first trial; and

d) the audio recordings from those same days.

[11] Mr. Devin Beals was not cross-examined on his affidavit.

[12] Ms. Sivarajah was cross-examined on her affidavit.

THE LAW

[13] There is no real dispute regarding the applicable law.

Bias and Reasonable Apprehension of Bias

[14] The right to a trial before an impartial judge is of fundamental importance to our system of justice. If the words or actions of a trial judge demonstrate bias or a reasonable apprehension of bias, then this basic right has been breached and renders a trial unfair.

[15] There is a strong presumption that judges are impartial. This presumption is not easily displaced. It has been described as a “heavy burden”. See R. v. Slattter 2018 ONCA 962 at para. 30.

[16] This presumption can be overcome by cogent evidence that demonstrates a properly informed, practical and realistic person, with knowledge of all the relevant circumstances, would conclude that the judge would not decide the case fairly. The test is objective. The law was recently set out by the Ontario Court of Appeal in R. v Mills, 2019 ONCA 940:

[226] The test for establishing a reasonable apprehension of bias was recently summarized by this court in R. v. Ibrahim, 2019 ONCA 631, 147 O.R. (3d) 272, at paras. 83-84:

The test for establishing a reasonable apprehension of bias is well known – would a reasonable person, properly informed and viewing the matter realistically and practically conclude that the decision-maker could decide the case fairly: Committee for Justice and Liberty v. National Energy Board, 1976 CanLII 2 (SCC), [1978] 1 S.C.R. 369, at p. 394, per de Grandpré J. (dissenting); Yukon Francophone School Board, Education Area #23 v. Yukon (Attorney General), 2015 SCC 25, [2015] 2 S.C.R. 282, at paras. 20-21.

In Canadian law, judges are presumed to be impartial. As this court said in R. v. Dowholis, 2016 ONCA 801, 133 O.R. (3d) 1, at para. 18: “There is a strong presumption of judicial impartiality and a heavy burden on a party who seeks to rebut this presumption.” See also Wewaykum Indian Band v. Canada, 2003 SCC 45, [2003] 2 S.C.R. 259, at para. 59; R. v. S.(R.D.), 1997 CanLII 324 (SCC), [1997] 3 S.C.R. 484, at para. 117, per Cory J.; R. v. Ruthowsky, 2018 ONCA 552, at para. 21.

(emphasis added)

[17] The objective test is necessary to ensure not only the reality, but the appearance of a fair adjudicative process. However, the reasonable person must not be a “very sensitive or scrupulous” but rather a right-minded person. See R.D.S. at paras. 36, 37 and 111.

[18] The applicant must present “cogent evidence” that demonstrates bias or reasonable apprehension of bias by the judge. See R. v. S. (R.D.), 1997 CanLII 324 (SCC), [1997] 3 SCR 484, at para. 117 and 141.

[19] The evaluation of whether bias or a reasonable apprehension of bias exists is context driven. The judge’s conduct must be considered in the context in which the conduct occurred and all relevant circumstances. How a trial judge responds to a given trial situation is often informed by the way counsel conduct themselves in a particular situation during the trial. This was described in Mills, supra:

[235] That said, determining whether a trial judge has exhibited bias or a reasonable apprehension of bias requires a contextual assessment. It is significant in this case that the major flare-ups between the trial judge and defence counsel occurred in the context of what the trial judge determined to be matters that threatened the fairness of the trial. Although at times the trial judge was severe, viewed in the context of an attempt to enforce rules established to safeguard trial fairness, we do not agree that an objective observer would conclude that the trial judge had lost objectivity or engaged in behaviour that cumulatively would have given the appearance that the trial was unfair.

(emphasis added)

[20] As applied to the allegations of a trial judge’s bias, the fundamental question applicable to this application, was paraphrased by the Court of Appeal in Mills as follows:

[228] The question is whether the trial judge’s interactions with counsel to Mr. Williams evidenced actual bias on the part of the trial judge or gave rise to a reasonable apprehension of bias. Stated more specifically, would the cumulative effect of the exchanges, comments, and other behaviour, when examined in the context of the trial as a whole, lead a reasonable observer to conclude that the trial judge was not an adjudicator “disinterested in the outcome, and open to persuasion by the evidence and submissions”: R. v. S. (R.D.), 1997 CanLII 324 (SCC), [1997] 3 S.C.R. 484, at para. 104.

(emphasis added)

[21] Subjective opinions, by themselves, do not displace the strong presumption of impartiality. See Beard Winter LLP v. Shekhdar, 2016 ONCA 493, [2016] O.J. No. 3257 (C.A.):

[12] The moving party’s subjective opinion about the tone of my voice, my appearance and attentiveness during the proceedings cannot, standing alone, overcome the strong presumption in favour of judicial impartiality…

[22] The onus of demonstrating bias or reasonable apprehension of bias lies with the party alleging bias. See S. (R.D.) supra at para. 114.

[23] The standard of proof is on the balance of probabilities. See Marchand (Litigation Guardian of) v. Public General Hospital Society of Chatham (2000), 2000 CanLII 16946 (ON CA), 51 O.R. (3d) 97 (C.A.), at para. 131.

[24] The court should consider the evidence, individually and cumulatively, in the context and circumstances of the entire trial, to determine whether the moving party has satisfied their burden. See R. v. R.D.S (1997) 1997 CanLII 324 (SCC), 3 S.C.R. 484:

141 These examples demonstrate that allegations of perceived judicial bias will generally not succeed unless the impugned conduct, taken in context, truly demonstrates a sound basis for perceiving that a particular determination has been made on the basis of prejudice or generalizations. One overriding principle that arises from these cases is that the impugned comments or other conduct must not be looked at in isolation. Rather it must be considered in the context of the circumstances, and in light of the whole proceeding.

(emphasis added)

[25] There is an obligation on a party or counsel to raise the issue of bias or presumption of bias at the earliest time. This permits opposing counsel and the trial judge a contemporaneous response, possible change in conduct and preserve a record. As described in Mills supra:

[227] It is accepted as a general rule that allegations of bias or a reasonable apprehension of bias should be advanced as soon as it is reasonably possible to do so: R. v. Curragh Inc., 1997 CanLII 381 (SCC), [1997] 1 S.C.R. 537, at para. 11; R. v. Nero, 2016 ONCA 160, 334 C.C.C. (3d) 148, at para. 33, leave to appeal refused, [2016] S.C.C.A. No. 184 (Nero) and [2016] S.C.C.A. No. 187 (Caputo). A timely application has two advantages. First, it can serve to alert the trial judge to the possible need for modification of his or her behaviour and/or for a corrective jury instruction, depending on the circumstances: see e.g., the instructions given by the trial judge in R. v. Snow (2004), 2004 CanLII 34547 (ON CA), 73 O.R. (3d) 40 (C.A.), at paras. 48-49. Second, it creates an evidentiary record and ruling for purposes of appeal, if necessary. Although counsel to Mr. Williams complained about the trial judge’s conduct at certain points in the trial, there was no application for a mistrial in this case, and this issue arises for the first time on appeal. Accordingly, while it is apparent from the transcript that the trial judge’s interactions with defence counsel were at times inappropriate, we do not have the benefit of an evidentiary record and ruling arising from a mistrial application.

(emphasis added)

Judicial Assignments

[26] Counsel cannot choose or direct the court which judges may or may not be assigned to a particular case.

[27] The Courts of Justice Act provides:

36 (1) The Chief Justice of the Ontario Court of Justice shall direct and supervise the sittings of the Ontario Court of Justice and the assignment of its judicial duties.

(2) A regional senior judge of the Ontario Court of Justice shall, subject to the authority of the Chief Justice of the Ontario Court of Justice, exercise the powers and perform the duties of the Chief Justice of the Ontario Court of Justice in his or her region.

75 (1) The powers and duties of a judge who has authority to direct and supervise the sittings and the assignment of the judicial duties of his or her court include the following:

3. Assigning cases and other judicial duties to individual judges.

[28] As the Regional Senior Justice for the Central West Region, with the authority to assign a judge to the second trial in this proceeding, I heard this recusal application to determine whether I should exercise my jurisdiction to assign another trial judge to the second trial.

Role of Trial Judge and Counsel during a trial

[29] The trial judge has an obligation to ensure that a trial is proper and fair to all parties. Interruptions by the trial judge during a trial are often necessary to ensure a fair trial and, by themselves, are not necessarily indicative of bias or reasonable apprehension of bias. The comments of Lamer J. in Brouillard Also Known As Chatel v. The Queen, 1 S.C.R. 39, at p. 44:

[I]t is clear that judges are no longer required to be as passive as they once were; to be what I call sphinx judges. We now not only accept that a judge may intervene in the adversarial debate, but also believe that it is sometimes essential for him to do so for justice in fact to be done. Thus a judge may and sometimes must ask witnesses questions, interrupt them in their testimony and if necessary call them to order.

(emphasis added)

[30] Counsel and the trial judges have an obligation to ensure that a trial is fair and is seen to be fair by the public to maintain confidence in the administration of justice.

[31] Trials are not without tension. Trials are often very contentious hearings. At times, counsel: forcefully put forward their positions; seek to gain an advantage at trial; do not follow the rules of evidence; are argumentative with the judge and/or other counsel; ignore rulings or other such conduct. When such conduct takes place, the trial judge has a duty to ensure the rules of evidence are complied with; rulings are followed, and trial fairness are maintained for the proper administration of justice. See R. v. Gager, 2020 ONCA 274:

[152] As Mr. Gager’s counsel stated in submissions during the mistrial application, a trial is not a tea party: see also Groia v. Law Society of Upper Canada, 2018 SCC 27, [2018] 1 S.C.R. 772, at para. 3. This is particularly the case in criminal proceedings where the stakes are so enormously high for the accused. Defence counsel must feel at liberty to forcefully protect their clients’ interests within the bounds of their professional obligations and the rule of law. A trial judge must intervene with caution so as not to create trial unfairness. At the same time, he or she has a right and an obligation to intervene to control the process, even to intervene to rebuke and correct counsel: Marchand (Litigation guardian of) v. Public General Hospital Society of Chatham, 2000 CanLII 16946 (Ont. C.A.), at para. 154, leave to appeal refused, [2001] S.C.C.A. No. 66; R. v. Ibrahim, 2019 ONCA 631, 147 O.R. (3d) 272, at para. 97.

[153] There is no question that trial judges must endeavour to carry out their obligation to manage a trial in a courteous manner: Mills, at para. 234. However, we do not expect trial judges or counsel to be perfect. That is why context is so important. The test is whether the objective observer would conclude in the circumstances that the trial judge would likely not decide fairly or otherwise undermine trial fairness. The fact that the trial judge and counsel occasionally and admittedly showed some signs of impatience and frustration in the course of a very difficult four-month proceeding was entirely understandable in this case. I am satisfied in the circumstances that the trial judge’s interventions, viewed in context, come nowhere close to being discourteous, let alone establishing a reasonable apprehension of bias.

(emphasis added)

[32] A judge presiding over a criminal jury trial has a duty to ensure that only relevant, material and admissible evidence gets before the jury. See R. v. B. (F.F.), 1993 CanLII 167 (SCC), [1993] 1 S.C.R. 697, at pp. 735-736.

[33] The trial judge has a duty, and obligation, to intervene when counsel fail to follow the rules of evidence or abide by rulings. See R. v. Snow, (2004) 2004 CanLII 34547 (ON CA), 73 OR (3d) 40 (C.A.):

[24] On the other hand, a trial judge is certainly entitled to control the proceedings and to intervene when counsel fail to follow the rules or abide by rulings. A trial judge is not a mere observer who must sit by passively allowing counsel to conduct the proceedings in any manner they choose. It is well recognized that a 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: see R. v. Felderhof (2003), 2003 CanLII 37346 (ON CA), 68 O.R. (3d) 481, 180 C.C.C. (3d) 498 (C.A.) at paras. 36-47, 53; R. v. Valley, 1986 CanLII 4609 (ON CA), [1986] O.J. No. 77, 26 C.C.C. (3d) 207 (C.A.) at pp. 230-32 C.C.C.; R. v. G. (A.), 1998 CanLII 7189 (ON CA), [1998] O.J. No. 4031, 130 C.C.C. (3d) 30 (C.A.) at paras. 41-54. We agree with the submission of the Crown that when viewed in the context of the proceedings as a whole, the trial judge did not cross "the difficult line between unnecessary, discourteous or erroneous interventions, and interventions that destroy the appearance of f airness": see R. v. Lyttle, 2004 SCC 5, [2004] 1 S.C.R. 193, 180 C.C.C. (3d) 476, at paras. 44-52.

(emphasis added)

[34] Counsel, both defence and Crown, are advocates and routinely and vigorously put their positions forward at trial. At times, counsel’s voices are raised, forceful and persistent in making their submissions. When counsel forcefully take and defend positions or refuse to accept rulings of the trial judge, that makes the trial judge’s trial responsibilities more difficult. When this happens, the trial judge must intervene and, when necessary in a forceful manner to maintain or regain control of the trial. This is essential to carry out the trial judge’s duty to control the process and to ensure the trial is fair to all parties. Strong language, intervention, and other conduct by a trial judge to reasonably and properly control counsel to properly manage and ensure a fair trial does not, by itself, demonstrate any bias or apprehension of bias against or for any party.

[35] And then there are objections during a trial. Some have merit, some do not. As stated above, the trial judge has a duty to ensure that inadmissible evidence gets before the jury or risk a mistrial. Counsel have a duty to ensure that inadmissible evidence is not introduced at trial – this might result in an unfair trial or a mistrial.

[36] At times, counsel disagree, are upset or frustrated by the trial judge’s ruling. However, counsel is obliged to accept the trial judge’s ruling and move on with the trial. When counsel continue to make submissions after a ruling, the trial judge must intervene, and if necessary, forcefully, to maintain control over the trial to ensure the judge’s rulings are respected and the trial continues.

[37] The trial judge must exercise their discretion to determine when a jury is to be excluded and when a jury remains in the courtroom, including for objections. Juries are routinely told that objections, submissions with respect to the objections and the ruling on the objections are irrelevant matters and must not form part of their deliberations or affect their decision in the case. In this application, Defence counsel submitted that the appropriate approach is that, when an objection is made, the trial judge should excuse the jury. Such an approach for every objection would unduly lengthen jury trials, often to the frustration of the jury. In could encourage this as a disruption tactic by counsel to interfere with the proper evidence from a witness. Sometimes the nature of the objection must be briefly described before the trial judge can determine whether to exclude the jury or proceed to deal with the objection before the jury. How the trial judge deals with objections are within the trial judge’s discretion, a discretion to be exercised reasonably.

[38] One does not determine whether a trial judge is biased one way or another by counting the rulings made for or against one side.

Recusal Applications and Threats of Recusal Applications as a tactic

[39] Bringing or threatening specious bias claims against a judge is a “most objectionable tactic.” See Beard Winter supra at para 10:

…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.

(emphasis added)

POSITION OF THE PARTIES

Defence's Position

[40] The Defence submits that Justice Woollcombe should not preside at the second trial in this matter because she is biased or there is a reasonable apprehension that she is biased against Defence counsel, Ms. Gadhia or Mr. Devin Beals.

[41] The Defence's position is summarized from the following paragraphs from the Applicant's factum:

Throughout these seven weeks of trial, Madame Justice Woollcombe acted in a manner

which was highly inappropriate and demonstrated judicial bias towards counsel for the

Applicant, Ms. Gadhia. She would repeatedly reprimand counsel in front of the jury and

intervene during cross-examinations and submissions

Given Madame Justice Woollcombe’s demonstrable bias against the Applicant and his

counsel, the Applicant is asking for the Madame Justice Woollcombe to be recused.

Crown’s Position

[42] The Crown submits that there is no merit to the Defence application, and it should be dismissed. The Crown’s position was summarized in these two paragraphs from its factum:

8. Each of these examples arose in response to Ms. Gadhia’s own conduct. Ms. Gadhia makes no attempt to legally or procedurally justify her conduct in this application. Instead, she attacks the way in which Justice Woollcombe responded to her conduct as demonstrating a reasonable apprehension of bias. She further asserts this apprehension is reinforced by the ‘tone’ accompanying it. The law required Ms. Gadhia advance the allegation of reasonable apprehension of bias as soon as it was reasonably possible to do so. She did not do this. As a result, the original trial record is incomplete and Justice Woollcombe did not have the opportunity to contemporaneously respond to these allegations.

9. Justice Woollcombe’s actions, individual and collectively, were all appropriate responses to defence counsel’s inappropriate conduct. Ms. Gadhia effectively created her own crises, and now seeks to use the fallout from her actions as proof of Justice Woollcombe’s supposed bias. Such an argument does not meet the “high threshold” required for a reasonable apprehension of bias claim to be made out.

ANALYSIS

The Defence Affidavits

[43] The affidavits and the Defence submissions make numerous bald and subjective statements of the trial judge’s alleged bias or apprehension of bias. These statements are bald statements which rely on the maker’s subjective interpretation of the trial judge’s conduct. For the reasons that follow, the Defence affidavits have little or no weight in deciding this application.

Ms. Sivarajah's Affidavit

[44] I am not persuaded that Ms. Sivarajah’s affidavit is of much assistance in this application. I conclude this for a number of reasons:

a) A lack of impartiality;

b) Making subjective and bald statements and opinions; and

c) Deliberately providing incomplete or a lacking context to the court.

Lack of Impartiality

[45] Generally, affiants should only include matters within their personal knowledge and not include statements based on information and belief which are contentious. Rule 4.06(2) of the Criminal Rules provides:

(2) An affidavit shall be confined to a statement of facts within the personal knowledge of the deponent or to other evidence that the deponent could give if testifying as a witness in court, except that an affidavit may contain statements of the deponent’s information and belief with respect to facts that are not contentious, provided that the source(s) of the information and the fact of belief are specified in the affidavit, or except where these rules provide otherwise.

(emphasis added)

[46] Further, it is generally inappropriate for counsel, as officers of the court, to put their credibility at issue in the same proceeding in which they act as counsel. This applies to counsel but equally applies to “partners” or “associates” in the same firm. Ms. Sivarajah is currently an associate in the offices of Defence counsel. This concern becomes more pronounced where the information, or significant portions of the information in the affidavit comes from senior counsel, as it does in this case, since Ms. Sivarajah was not in attendance for the entirety of the trial but only on “several days” between February 11 and March 12, 2020. See R. v. B. (S.H.) 1993 CanLII 15074 (MB QB), 1993 21 W.C.B. (2d) 217, 89 Man. R. (2d) 267:

16 I had previously referred to the fact that counsel for t he accused filed his own affidavits in support of his motions. It is inappropriate for counsel (and in most instances other members of counsel's law firm) to file his or her own affidavits in support of a litigant's cause (R. v. Deslauriers(1992), 1992 CanLII 4022 (MB CA), 83 Man. R. (2d) 7).

(emphasis added)

[47] The Law Society of Ontario’s Rules of Professional Conduct repeat this principle. The commentary to the Rule 5.2-1 also requires that lawyers not express “personal opinions or beliefs” that is subject to challenge:

5.2-1 A lawyer who appears as advocate shall not testify or submit their own affidavit evidence before the tribunal unless

(a) permitted to do so by law, the tribunal, the rules of court or the rules of procedure of the tribunal, or

(b) the matter is purely formal or uncontroverted.

Commentary

[1] A lawyer should not express personal opinions or beliefs or assert as a fact anything that is properly subject to legal proof, cross-examination, or challenge. The lawyer should not in effect appear as an unsworn witness or put the lawyer's own credibility in issue. The lawyer who is a necessary witness should testify and entrust the conduct of the case to another lawyer. There are no restrictions on the advocate's right to cross-examine another lawyer, however, and the lawyer who does appear as a witness should not expect to receive special treatment because of professional status.

(emphasis added)

[48] Ms. Shivarajah expresses personal opinions and beliefs as to the alleged bias of the trial judge. These are the central issues in this application. These are challenged by the Crown. This raises a question regarding whether Ms. Shivarajah should have provided the affidavit that she did in this application.

[49] Ms. Shivarajah testified that she is an “objective witness” on this application. Ms. Shivarajah was involved in preparing her affidavit and the factum. Ms. Shivarajah testified she “wants the application to succeed”. The lack of partiality is obvious.

Subjective Opinions

[50] Ms. Shivarajah’s subjective opinions and bald statements regarding the trial judge’s alleged bias often lacked any reference to the transcripts or the audio recordings but were generalized statements attacking the trial judge. Some of these subjective opinions and bald statements are, in my view, highly inappropriate and highly charged for an officer of the court. For example:

…her Honour would raise her voice when speaking to Ms. Gadhia, in a manner that was uncharacteristic of a presiding justice. It was akin to a parent scolding a child.

…Her Honour would often make facial expressions while speaking to Ms. Gadhia which were highly inappropriate, such as raising her eyebrows to emphasize a point, or furrowing her eyebrows to demonstrate disfavor with what Ms. Gadhia was saying… Her Honour would not make such unprofessional facial expressions towards any other party

… it was apparent that Her Honour was singling out Ms. Gadhia in her mistreatment.

..it appear as though Her Honour was intentionally choosing to undermine defence counsel in front of the jury.

… The manner in which Her Honour spoke to Ms. Gadhia was more than just impolite and unprofessional. It called into question the fairness of the overall trial. Any member of the community would be appalled by the chastising comments made, and Her Honour’s unwillingness to ever admit to the jury that her behavior was inappropriate and should be disregarded.

(emphasis added)

[51] In this case, the test to be applied by the court is an objective test. Ms. Shivarajah’s subjective opinions and bald statements carry no weight by themselves.

Deliberately incomplete or lacking context

[52] There is no dispute that context is highly relevant to the test to be applied in this application.

[53] Ms. Shivarajah confirmed, during her cross-examination, that she only included those portions of the trial judge’s conduct relied upon by the Defence, without putting the entire context or even the trial judge’s response to or reasons setting out any apparent explanation for what the trial judge said or did. This approach by Ms. Shivarajah failed to include highly significant context.

Conclusion

[54] I conclude that very little, if any, weight can be placed on the Affidavit of Ms. Shivarajah. I provide some discrete examples demonstrating the above significant concerns:

i. Ms. Shivarajah agreed, during her evidence, that the facts set out in the Defence factum (that she assisted to prepare) were accurate statements of fact. The factum states that the trial judge “had demonstrated bias towards the defendants”. A similar statement is made in the factum that “counsel for the co-defendants would not unanimously agree to elect for a judge-alone trial” “without a guarantee that Madame Justice Woollcombe would not preside over this trial, without a jury”. These statements are misleading. There is no evidence that any other defendant or their counsel believe or support the allegation that the trial judge was biased. As these statements are in the factum, these statements might have little impact on the reliability of Ms. Shivarajah’s evidence. However, when Ms. Shivarajah was confronted with these misleading statements, during her cross-examination, Ms. Shivarajah vehemently denied that it was improper to suggest the trial judge appeared biased to “all defendants” and, eventually, after persistent cross-examination, agreed she was “not privy” to information supporting these statements and, later still, eventually retreated to state that she had not written the factum paragraphs containing these statements. But even then, Ms. Shivarajah demonstrated a lack of impartiality when, unsolicited, she added to her answer that Ms. Gadhia, “must have had a basis for saying it”;

ii. Ms. Shivarajah referred to an “incident” on March 5, 2020 where Ms. Gadhia said to the trial judge to stop yelling at her on March 5, 2020. Ms. Shivarajah’s affidavit stops there. Here is the following portion of the transcript:

THE COURT: Well, I'm sorry, I'm upset. I'm very...

MS. GADHIA: I appreciate...

THE COURT: ... concerned about this.

MS. GADHIA: I appreciate you're upset...

THE COURT: This is a...

MS. GADHIA: ... but you're now yelling at me.

THE COURT: This is a very - Ms. Gadhia, this was a highly inappropriate inflammatory question designed...

MR. MCGUIRE: But that's the objection.

THE COURT: Well he's right, in my view. And you didn't have a good faith basis for it. I don't think...

MS. GADHIA: But that's one thing that needs to be ruled on, right?

THE COURT: I'm ruling on it right now. It's...

What the Defence did not reference or include was the very next line in the transcript where the trial judge apologized to Ms. Gadhia and explained why the trial judge raised her voice. When asked why this was not included, Ms. Shivarajah responded that the trial judge “did not mean the apology”. It is unclear how Ms. Shivarajah would know the apology was not “meant” by the trial judge. The abrupt dismissal of the apology and failure to include the apology are very troubling. This demonstrates the lack of reliability of Ms. Shivarajah’s evidence;

iii. On a more general note, regarding the failure to be complete or include the context, Ms. Shivarajah, when asked about other portions of the trial transcripts which provided context to the alleged bias, Ms. Shivarajah’s response was that neither she, nor the Defence, had an obligation to provide the court with full context. Ms. Shivarajah stated it was the Crown’s obligation to provide the context of the alleged biased conduct. In my view, this demonstrates that Ms. Shivarajah’s evidence was not “objective” and she deliberately failed to put forward complete and balanced evidence to the court. Eventually, during the cross-examination on this issue, Ms. Shivarajah attempted to avoid the criticism during cross-examination by pointing out, several times, that the transcripts and audio recordings had been provided to the court so as to suggest that the court did have the full context. This is not an acceptable explanation. It is not for this court to review in detail the many filed transcripts and many filed audios to ascertain whether counsel’s evidence was complete and balanced;

iv. On February 13, 2020 at page 10, the Defence suggests that the trial judge was “condescending” to Ms. Gadhia during this exchange by saying in front of the jury “do you need a minute”. Ms. Sivarajah was asked why the Defence failed to include the subsequent exchange between the trial judge and Ms. Gadhia. There was no satisfactory response to this question. The following exchange immediately followed the “do you need a minute” comment by the trial judge after the jury was excused:

THE COURT: All right, then stop yelling, please.

MS. GADHIA: I'm asking, with respect, please, that Mr. McGuire not interrupt my cross

THE COURT: I agree you have latitude with, with the witness as defence counsel, but in my view, it's important that you be fair. The concern that's been raised at this point, Ms. Gadhia, is that you were yelling at the witness. And I share Mr. McGuire's view that you had raised your voice, and you appeared to me to be close to - you're clearly frustrated and clearly angry, and it, it was coming across that way, which is why I asked you whether you wanted a break. I wanted to give you the opportunity to compose yourself so that you would be composed in front of the jury. I think it does you a disservice to have you continue on if you're clearly at a point where you're frustrated and yelling at the witness. I'm not going to admonish you in front of the jury about that. But I'm concerned about the appearance that that created. I understand your obligation to put questions fairly to the witness. You understand your obligations to put questions fairly to the witness. And I want you to do that,

v. Ms. Shivarajah testified that the trial judge saying to Defence counsel to “sit down” was an indication of bias. Yet, again, when the examples relied on by the Defence are fully reviewed, the trial judge also told the Crown to “sit down” on numerous occasions. It is not uncommon for counsel to fail to sit down while the other counsel is making submissions or counsel refuses to accept a ruling but continues to argue with the court, requiring the trial judge to tell one counsel or the other to “sit down” to maintain control of the trial.

Mr. Beals' Affidavit

[55] I put no weight in the opinions of Mr. Beals expressed in his affidavit for a number of reasons:

(i) First, Mr. Beals has an interest in the outcome of this application;

(ii) Second, Mr. Beals opinions are subjective, not capable of any rational or reasonable assessment by this court;

(iii) Third, there is no basis to assess Mr. Beals’ understanding or knowledge of what occurred at the first trial nor what is appropriate, normal or reasonable in exchanges between counsel and the trial judge;

(iv) Fourth, Mr. Beals’ opinions regarding the trial judge’s alleged bias were first raised 11 months after he alleges, he came to have those opinions. Mr. Beals’ states, in his affidavit, feelings of "hopelessness" because of the trial judge’s conduct as early as the jury selection. Yet, not a single word of this concern was expressed by Mr. Beals directly or through counsel throughout the trial or after the trial was declared a mistrial. These opinions were only first expressed in this application and after Justice Woollcombe was assigned to preside at the second trial and the application was brought only after Defence counsel was ordered to do so rather than wait until the eve of trial. It is not believable, Mr. Beals was prepared to proceed with the first trial, with the same trial judge whose behaviour “shocked him”, who he believed was biased against him right from the beginning, on a murder charge which might go against him. It is difficult to believe that Mr. Beals would do so if Mr. Beals truly felt the way he expresses in his affidavit. There is an explanation offered by the Defence for the delay. For the reasons set out below, I reject the explanation;

(v) Fifth, Mr. Beals states in his affidavit that he believed he “was being personally targeted” and that “my lawyer and I were being picked on”. Yet, there is not a single reference that the trial judge ever spoke to Mr. Beals personally;

(vi) Lastly, Mr. Beals suggests that, what he perceived as bias, may have been directed at Defence counsel because the trial judge was a female and the Defence counsel was the only other female in the courtroom. There is no evidence of this. It is a very serious allegation to make against any judge that they are biased because of their gender.

Delay in bringing the Recusal Application

[56] Allegations of bias or a reasonable apprehension of bias should be raised as soon as reasonably possible. See R. v. Roberts-Stevens, [2018] O.J. 5430 (S.C.J.) at para. 29. Bringing the recusal motion as soon as reasonably possible allows:

a) for the creation of a proper evidentiary record on which the allegations can be assessed;

b) opposing counsel to put on the record their contemporaneous views;

c) the judge to respond to the allegations or the alleged misconduct whereas a delay results in the trial judge not having an opportunity to respond, as is the case here;

d) the judge to clarify, correct or modify the conduct, when the allegations have merit. This includes the judge providing a limiting instruction to the jury when appropriate.

[57] The Defence submits that the recusal application was not brought during the first trial because Mr. Beals was in custody and did not want to delay his trial further. I find no merit in this submission.

[58] Reading Mr. Beals’ affidavit carefully, with the many strong criticisms and concerns he expresses about the partiality and conduct of the trial judge, it makes no sense that Mr. Beals would say nothing, permit the trial judge to continue with her alleged “shocking” and “biased” behaviour for the many weeks while the trial continued, to risk a finding of guilt on a murder charge and risk a minimum of a 25-year custodial sentence. Had Mr. Beals been convicted, and the matter appealed without a recusal motion having been brought before the trial judge, there is a serious risk the Court of Appeal would not allow the recusal issue to be raised for the first time on appeal. The risk to the Defence in failing to deal with what he perceived was a biased trial judge, right from the beginning during jury selection, was simply too great to ignore or delay.

[59] If Mr. Beals had truly felt that way right from the jury selection, the recusal motion could have been brought during the jury selection resulting in little delay in the trial.

[60] By bringing the recusal motion at this time, the Defence has:

a) Deprived opposing counsel of responding to the allegations at the time of the alleged misconduct. This is particularly significant since much of the Defence position relies on the “tone” or “manner” in which the trial judge spoke towards or dealt with the Defence counsel during the first trial; and

b) Deprived the trial judge of an opportunity to deal with the alleged bias and respond to the allegations now made or to modify any behaviour or give a limiting instruction to the jury.

[61] Delay is a factor favouring the dismissal of this application.

Prior threat of bias

[62] As set out above, using a threat of or a recusal application because a ruling goes against counsel or a strategy to get a different judge is a “most objectionable tactic”.

[63] Defence counsel has used this “objectionable tactic” to threaten recusal motions on one occasion, in this very proceeding, when rulings were made against her prior to bringing this application and appears to imply a similar threat to the trial judge during the first trial.

The Preliminary Hearing

[64] Justice Caponecchia presided at the preliminary hearing. During the preliminary hearing, there was some late disclosure by the Crown. Defence counsel sought an adjournment until the next morning. After very lengthy submissions on the nature of the disclosure and the adjournment request, Justice Caponecchia made the following mid-trial ruling on July 9, 2019 Preliminary:

CAPONNECHIA J (ORALLY): (sic) On this application for adjournment till tomorrow to postpone the cross-examination of Mr. Fiseha, I understand that an inch worth of notes for an officer, who had more than incidental contact with this witness, was provided last night and requested repeatedly prior to today. In the circumstances I am going to allow the adjournment until two o’clock this afternoon, and we will continue with cross-examination to allow the defence a chance to look at the notes of the officer.

MS. GADHIA: I, I can tell you, Your Honour, that that’s not going to be enough time for me to review the notes.

THE COURT: That’s, that’s my ruling. Cross-examination will continue today at two o’clock. Okay. And then you have overnight if you’re not finished to look at it some more. Okay. So we’ll then adjourn till two o’clock.

[65] The preliminary judge’s ruling was not accepted by Defence counsel. Defence counsel repeated and made lengthy further submissions on why she needed more time to review the disclosure.

MS. GADHIA: Thank you. Providing disclosure once again, this is not a simple charge. I have an obligation to represent my client. I cannot be forced on to a cross-examination where material that is integral to that cross-examination has not yet been provided to me, and is being provided to me piecemeal as I stand on my feet. It is unfair and it should not be allowed. And I’m asking again for an adjournment, because I need to digest this material. And it would be extremely prejudicial to my client that I am not in a position to conduct the type of cross-examination that I need to complete in order to represent him effectively.

THE COURT: So are – is this a renewal of your request to cross-examine tomorrow?

MS. GADHIA: It is, absolutely.

THE COURT: Okay. So based on what I’ve heard so far, I take your point about wanting to cross- examine him about these phone records and the phone calls based on what he’s testified so far. Is there no part of the cross-examination you can start, for example, what happened under the bridge, what happened later on, and come back to the phone?

[66] Again, lengthy submissions were made by Defence counsel who added further reasons why she could not start her cross-examination that afternoon. After hearing further submissions from all counsel, the preliminary judge repeated her ruling:

THE COURT: Okay. Ms., Ms. Gadhia, I understand and I don’t doubt for a moment that you requested these notes and the video statements of Mr. Fiseha and other witnesses. My issue is to use this time based on the disclosure that you have – do have to start the cross-examination. It may very well be that tomorrow we’re not going to finish Mr. Fiseha anyways, and you’re going to be able to come back and continue the cross-examination. But I’m – I’d like to make use of this time for – I can – I’ll release further reasons for this ruling, but I’m going to order that the cross-examination begin. And I’ll leave it at that and I’ll release reasons at a later date, ‘cause I’d like to keep this moving.

[67] Still not pleased with the reaffirmation of the preliminary judge’s prior ruling, the Defence counsel continued but, now suggesting, the trial judge was biased and threatening a recusal application:

MS. GADHIA: I’m, I’m, I’m a bit troubled, Your Honour, and I’m going to make it very clear why I’m troubled. I haven’t been doing this for 22 years to not know that there’s a problem when the defence is urging the court to give us time when we’re being provided disclosure that has an effect on the cross-examination of a key witness in this trial, and we’re being forced on because there’s a concern about the remaining hour and a half of court time, after we’ve had this argument. And I find it problematic that Your Honour is pushing me on when I’ve asked for the time. And it’s not that I’ve asked for the time because I’m not ready and I’m not prepared, it’s because I’m getting material the day of and it’s relevant, it’s important and I need to be able to cross-reference it with the rest of my cross-examination. I cannot be expected to do that, Your Honour. And I know that Your Honour used to be a Crown Attorney in this building. And I know that Your Honour worked under Mr. McGuire at some point. I’m not exactly sure. But it seems problematic when there seems to be a bias against the defence in being able to make a simple request, which is imperative for the defence of their clients. I’m not here to waste court time. I am here to represent that gentleman who is sitting in custody whose liberties are at stake. And for the court to say, well, we’re not going to waste an hour and a half of time. This courthouse waste time all the time. The Crown’s office waste time all the time. If they wanted to provide disclosure that had been requested on numerous occasions over this past several months, they should’ve done so, but to use the excuse now, oh, we have an hour and a half that we’re going to waste, it’s ridiculous. And it’s not fair to my client. And I’m not sure whether or not Your Honour because of your prior relationship with this Crown’s office feels that it’s perfectly okay to go along with the Crown’s request, but it’s not. This is not an okay situation. And I don’t know whether or not I have to file an application to ask Your Honour recuse yourself, because I don’t think Your Honour is being fair. I think Your Honour has taken it upon yourself to say, well, defence counsel, go ahead and just start asking. That’s not the way it works, Your Honour.

(emphasis added)

[68] After an adverse ruling by the preliminary judge, Defence counsel alleged the preliminary judge was biased and speculated on some connection between the Crown and the trial judge. No recusal motion was ever brought. Just the threat of one.

The first trial

[69] On February 13, 2020, the trial judge sustained an objection by the Crown that a question asked by Defence counsel was unfair.

[70] After lengthy submissions, Defence counsel continued to be of the view that the question was not unfair and wanted the trial judge to tell the jury that her question was NOT unfair. The trial judge refused to do so.

[71] Again, there was, what appears to be a veiled threat of bias and a recusal motion. The Defence counsel said:

Your Honour, and because of the argument that Your Honour and I had where you suggested that I was unfair in my question to this witness, I'm asking that you apologize to me in front of the jury and indicate that the question was fair, and allow me to continue, please. Otherwise we are going to have a different discussion altogether here about what happens at this point, because the jury was told that I was being unfair, and you sustained Mr. McGuire's objection on that issue.

(emphasis added)

[72] This raises serious concerns that this recusal motion is simply a tactic to get another trial judge who might rule more favourably to the Defence.

Applicant’s Submissions

General Allegations of Bias

Adverse Rulings

[73] Much of the Defence submissions attack the correctness of the trial judge’s rulings as part of the “overall” evidence the trial judge was biased against her and favoured the Crown. It is clear from the trial record, and during submissions in this application, that the Defence vigorously challenged, and continues to disagree with, certain rulings made by the trial judge. Much of the Defence position, and indeed a substantial portion of the Defence factum, is focused on continuing to contest the rulings made by the trial judge.

[74] It is not for this court to determine whether the objections, positions of counsel or rulings were correct unless, taken as a whole, the ruling appears to be cogent evidence that the trial judge’s rulings, along with the rest of the evidence, demonstrates bias or a reasonable apprehension of bias.

[75] Once a trial judge makes a ruling on an issue, counsel has NO entitlement to continue to argue the issue – something which occurred with frequency in this trial and made for a highly contentious trial. This will be self evident from the excerpts from the transcripts set out below.

[76] There are several problems with the Defence submission that the trial judge’s rulings demonstrate bias:

a) Some rulings went in favour of the Defence; some went in favour of the Crown;

b) On a careful review of the examples raised by the Defence, in some cases, after further submissions by the Defence counsel, the trial judge revised its ruling in favour of the Defence;

c) disagreeing or being disappointed with a ruling is not, by itself, evidence of the trial judge’s bias or a reasonable apprehension of bias;

d) while the Defence goes on at great length to demonstrate that the trial judge’s initial ruling was incorrect, it is interesting to note that the Defence does not put forward any authorities in support of their position that the trial judge’s ruling was wrong in law; and

e) lastly, there is law that appears to support the trial judge’s ruling in most cases, despite the Defence counsel’s continued submissions during this application as to the correctness of her position on the objections and that the adverse rulings are evidence of bias.

[77] There is no evidence that the trial judge’s rulings were motivated by bias.

The Trial Judge’s Tone

[78] The Defence submitted that the trial judge’s “tone” or words used towards the Defence demonstrate bias. During the course of the application, the Defence played the audio of several examples as demonstrable of the trial judge’s alleged objectionable tone.

[79] It is very difficult to rely on audio tapes to assess whether someone is speaking loudly or firmly, whether that is the speaker’s normal tone, or the speaker is simply closer to the microphone.

[80] In this case, having listened to the audio recordings of the examples relied on by the Defence, there is no doubt that all participants raised their voices from time to time – not outright yelling, as is normally defined and understood, but certainly speaking more loudly or forcefully than normal. Despite the use of the words: “yelling” by Defence counsel and the trial judge, there were no “loud cries or shouts” (the definition of yelling) by anyone directed at someone else. I do not consider that a loud, forceful voice is evidence of bias. As stated, many times by the courts – a trial is not a tea party.

[81] It is also important to note that at times all counsel, including the Defence counsel, were vocally pressing in their submissions or comments regarding the other counsel and to the trial judge. There is no doubt that Defence counsel also, at times, used a loud, firm voice to make her submissions. When counsel do not accept rulings and continue to make submissions that the ruling is wrong or disregard prior rulings or seek to introduce inadmissible evidence, the trial judge must intervene to manage the trial to ensure only admissible evidence is adduced, the trial is fair to all and the trial proceeds in a reasonable manner.

[82] I do not doubt that the trial judge’s voice at times was stern or directive, all of which is normal for a judge where warranted by the circumstances which includes the situation faced by the trial judge with highly persistent counsel vigorously advancing their respective positions.

[83] Having heard the exchanges, I am not persuaded that when a loud, firm voice was used by the trial judge it is any evidence of bias, but rather was a firm, louder voice, often necessary, to maintain control of the trial.

[84] I see nothing in the trial judge’s tone in the examples relied on by the Defence that amounts to any evidence of bias or apprehension of bias.

Trial Efficiency

[85] During submissions, Defence counsel submitted it would be “best” to avoid having a second trial with the “toxic” or “contentious” atmosphere of the first trial because of the combination of the “three of us”: Defence counsel, Crown counsel and the trial judge. The Defence submits a different judge would avoid a repeat of this “toxic” atmosphere.

[86] It is not for counsel, Defence or Crown, to suggest which judge would be best to or should preside at the second trial. That is an administrative function. The jurisdiction to assign judges to specific matters lies with the Regional Senior Justice.

[87] There is no reason to believe that the contentious nature of the trial would be any different with a different trial judge, given that Defence counsel and the Crown will continue to be the same.

[88] It is a usual practice for a trial judge, who presided at a trial, aborted due to a mistrial, to preside at the second trial, some of which follow immediately after the mistrial. It is different for re-trials after an appeal where the second judge invariably is a different judge. See R. v. Pincivero (2000) O.J. No. 3602 (SCJ)

[89] The Defence suggests that it is not of necessity or efficiency to appoint the same judge:

It cannot be said that the decision to assign Madame Justice Woollcombe to the Applicant’s second trial is one that has been made out of necessity or efficiency.

[90] Whether it is more efficient to appoint the same trial judge does not assist the Defence in this application. The sole issue this court must decide is whether the Defence has established that the trial judge was biased or demonstrated a reasonable apprehension of bias.

[91] Judicial proceedings are not designed on the basis of a cost-benefit analysis. See R. v. Omar, 2007 ONCA 117 at para. 32

[92] However, as in many second trials after a mistrial, there are benefits to the same trial judge hearing the second trial:

a) The same trial judge made the pre-trial rulings which continue to apply to the second trial and the trial judge would be in the best position to know the context of the first ruling;

b) The same trial judge would be in the best position to efficiently deal with any requests by counsel to re-consider the earlier ruling;

c) the same trial judge would be aware of and be prepared to deal with the issues that arose during the first trial;

d) the same trial judge would be aware of the legal issues and the subject of the jury charge as the legal issues will not change with the second trial;

e) the same trial judge would be in the best position to deal with the partly concluded mid-trial application; and

f) the same trial judge would be in the best position to deal with the Scopelitti application which the Defence has now brought.

[93] The Defence submits that the trial judge could become confused or could mix up the evidence from the first trial and the second trial. This submission is rejected. First, this is a jury trial. The jurors are the triers of fact. Any summary of the facts in the jury charge will first be canvassed with counsel. Secondly, judges routinely disabuse themselves of inadmissible evidence, such as when a trial judge excludes evidence on a pre-trial or mid-trial voir dire and proceed to preside over the trial and decide the case based solely on the admissible evidence.

[94] I reject this submission.

Specific Incidents as evidence of bias:

[95] I am satisfied that, in this case, the recusal application turns on the trial judge’s conduct as evidenced by the transcript and audio recordings in the context and circumstances of the trial.

[96] The Defence’s factum submits that “examples” from the transcripts and audio recordings will demonstrate the trial judge’s bias or reasonable apprehension of bias:

Several examples exist to demonstrate that Her Honour was acting in a manner which favored the Crown and sought to undermine Ms. Gadhia in front of the jury. These examples can be divided into two categories: (1) Inappropriate reprimands of counsel in front of the jury, and (2) Interventions made during cross-examinations and submissions.

[97] In my view, it is highly improper, in an application like this, where serious allegations are made against a judge, to leave a lingering implication that there are other unspecified examples of bias. If there is conduct in the record demonstrating bias on the part of the trial judge, they should be clearly set out. The onus is on the Defence. This is a recusal application, and the Defence makes very forceful, personal and general statements against a Superior Court Justice which should not be advanced without putting forth all the evidence in support of the Defence position.

[98] Let me proceed through each of the “examples” relied on by the Defence in this application.

a) Cross-examination of Mr. Bitar (February 13, 2020)

[99] Counsel must be fair in questioning witnesses. A trial judge has a duty to intervene to prevent the examination of a witness which is repetitive, prolix or abusive. See R. v. Peazer, [2005] O.N. No 3551 (Ont. C.A.) at para. 23.

[100] Some of the witnesses, like Mr. Bitar, had given statements to the police and testified at the preliminary hearing. This example revolves around a Crown objection, during the Defence counsel’s cross-examination of Mr. Bitar, that a question to Mr. Bitar was unfair.

[101] The Defence submits that the Crown’s objection was wrong in law and the trial judge’s ruling and reference to Defence counsel’s question as being “unfair” demonstrates bias, along with the trial judge’s refusal to instruct the jury that the Defence counsel’s question was not “unfair”.

[102] Defence counsel asked Mr. Bitar the following question in cross-examination (transcript page 8, lines 29-33):

Q. Okay. Okay. Now and again, at the preliminary hearing, on page 65 of the August 7th, you confirm again that the only thing the blue sweater guy, which is Devin Beals, says is he said, "Wait here, I'll be right back."

A. Yes.

MR. MCGUIRE: That's, that's not accurate, Your Honour.

MS. GADHIA: Sorry?

MR. MCGUIRE: That's not accurate. If counsel would read on....

[103] Defence counsel’s question was ambiguous through the use of the word “only”. Does the word “only” refer to the entire preliminary hearing or does the word “only” refer to page 65 on the August 7th preliminary hearing? It makes a significant difference. If “only” refers to the preliminary hearing, it is an unfair question since Mr. Bitar had said in the preliminary hearing that the “blue sweater guy” had said other things (10 pages later). If “only” refers to page 65 of the preliminary hearing, it is an accurate statement. But even then, Mr. Bitar would not know what else is on page 65. I recognize the perceived unfairness of the question given the wording used by Defence counsel.

[104] What followed was a lengthy exchange between the judge and both counsel on the issue. The jury was present for the following exchange (page 9 and following):

THE COURT: ...Ms. Gadhia, but if you're going to suggest that all that, that this witness said at the preliminary inquiry, that all Dev said was wait here I'll be back. And that's not fair. I don't think it's, it's appropriate for you to put it, and when I look at the question, the question I put at the prelim wasn't whether that was all he said, and I don't know whether there's passages where there's other things that Dev said.

MR. MCGUIRE: At page 75.

MS. GADHIA: Sure, 10 pages later, but....

THE COURT: But, but, but you've got to, you've got to put the questions fairly to the witness. You know that, Ms. Gadhia.

MS. GADHIA: I do know that, Your Honour.

THE COURT: All right.

THE COURT: ...and you - if you want to put this to the witness, Ms. Gadhia, you put it to the witness fairly and accurately. Read him the passage, ask him to confirm that's what he said and see whether it's accurate, but in fairness, you can't suggest to him that's all he ever said at the preliminary inquiry when it's not.

MS. GADHIA: I said he confirmed on page 65 and I hadn't finished reading the rest of the passage.

THE COURT: You hadn't read the passage to him at all. Look it...

MS. GADHIA: Well....

THE COURT: ...put the evidence to him properly. You know how to do that. It's to read the passage....

MS. GADHIA: Your Honour, with respect, and I mean this with respect, I was in the middle of asking a question. I hadn't finished my question. Mr. McGuire stood up and started to say that I hadn't put the entire passage to him...

THE COURT: Okay.

MS. GADHIA: ...and references at page 75, 10 pages down in the evidence. I'm not there.

THE COURT: Ms. Gadhia, do you need a minute?

MS. GADHIA: No, I'm asking that....

THE COURT: All right, then stop yelling, please.

MS. GADHIA: I'm asking, with respect, please, that Mr. McGuire not interrupt my cross examination when this can be dealt with in re-examination and I'm being interrupted during my cross-examination. This is not the first time it's happened and it's created problems. And if it continues to create problems, and it looks as if that there's a, there's a persistent need on Mr. McGuire's part to interrupt my cross examination, I am going to speak up. I have the right to cross-examine this man.

THE COURT: Ms. Gadhia, you have the right to cross-examine this witness fairly and I'm going to ask you to do so. Please continue.

MS. GADHIA: And I'm going to put it on the record so that it's noted that at 10:20 that I was asking these questions fairly.

[105] Immediately upon continuation of the cross-examination, a further objection was made by the Crown. The witness and jury then exited the courtroom (page 12) and the following exchange took place:

MR. MCGUIRE: Your Honour, Ms. Gadhia was clearly upset by my objection. Sorry that she is upset, but I'm allowed to make objections, especially objections that are sustained. The jury's been told that. They're not to take anything from that. Counsel lost her temper and her losing her temper then transformed into the manner in which she started cross-examining Mr. Bitar, and with respect, Your Honour, the witness should not be subject to Ms. Gadhia's temper. The witness hasn't done anything wrong. She was staring at him, walking up the side of the, of the witness box, glaring at him and raising her voice. And I think it inappropriate that a witness be treated that way. I didn't want to make that submission in the presence of the jury because I didn't want to call Ms. Gadhia out for that comment. But I'm asking the court to ask Ms. Gadhia to calm down, and especially when she is examining this witness. I was about to do it yesterday, when Ms. Gadhia was, essentially, recreating what she says her client did in the tunnel, flapping her, her robes and, and the like. It got really loud and I know Ms. Gadhia's not doing it for the purpose of intimidating the witness. I wouldn't suggest that. But it could have the effect of doing it. And I ask Your Honour to ask Ms. Gadhia to control the manner in which she questions this witness. She's angry at me, that's fine. But you know, witnesses can't be intimidated or pushed around by counsel when they raise their voice and lose their temper.

THE COURT: Ms. Gadhia, is there anything you want to say?

MS. GADHIA: No.

THE COURT: Would you like a break?

MS. GADHIA: I don't have a problem with a break issue. I have a problem with Mr. McGuire interrupting me, not even mid-cross-examination. We're talking at the beginning of those questions. I haven't even put the words to the witness and he said, well, that's not accurate. And I went back to start reading it. And he objected about a passage that's 10 pages away. There's no unfairness in my question. My question was very specific. On page 65 the following was put to you and you confirmed, you confirmed - because if you read on....

THE COURT: Ms. Gadhia, Ms. Gadhia, you didn't put to the witness, this was the question, this was the answer, this was the question, this was the answer. What you put to the witness was this is all you said was said. And you - I agree it's important that you be able to ask the question fully before Mr. McGuire objects. On the other hand, my view is it wasn't an entirely fair question. So you take a different view, which is fine, but my view is the one that counts here, ultimately, in terms of whether you're being fair to the witness. So you agreed you were going to go back and ask the questions of the witness. Mister....

At this point, the exchange becomes argumentative:

MS. GADHIA: Can I interject please? I was being fair to the witness.

THE COURT: Well, Ms. Gadhia...

MS. GADHIA: There's no unfairness in it.

THE COURT: ...my view was, it was an unfair question and you agreed to go back and, and, and to cover it. We, we've moved on from that.

MS. GADHIA: How is it an unfair question, Your Honour?

THE COURT: It's an unfair question to say this is all you said when that isn't what - that's not what the witness said. What - you know the way, the proper way to do this is to put to the witness what was, in fact, said.

MS. GADHIA: I said you confirmed....

THE COURT: That this is all that was said.

MS. GADHIA: You confirmed because if you read the next line, was there anything else that was being said and the answer is no.

THE COURT: All right, Ms. Gadhia, we share a different view about this. But the....

MS. GADHIA: But, but the point is, I need to finish that...

THE COURT: You do....

MS. GADHIA: ...before the objection could properly be sustained.

THE COURT: I agree you need to finish it now.

MS. GADHIA: But, but don't you understand that in that moment, he interjects. Sorry, Mr. McGuire interjects, before I finished the explanation of that passage. And now the jury is told that I was unfair to the witness. I've been admonished in front of this witness, in the middle of my cross-examination, and as defence counsel, we get latitude on how we cross-examine. If my friend takes issue with the passage, then note it down, come back afterwards and say, look, 10 pages later, you did say the following.

THE COURT: Ms. Gadhia, I agree, you have, you have latitude with the witness. Are you finished?

MS. GADHIA: I am.

THE COURT: I agree you have latitude with, with the witness as defence counsel, but in my view, it's important that you be fair. The concern that's been raised at this point, Ms. Gadhia, is that you were yelling at the witness. And I share Mr. McGuire's view that you had raised your voice, and you appeared to me to be close to - you're clearly frustrated and clearly angry, and it, it was coming across that way, which is why I asked you whether you wanted a break. I wanted to give you the opportunity to compose yourself so that you would be composed in front of the jury. I think it does you a disservice to have you continue on if you're clearly at a point where you're frustrated and yelling at the witness. I'm not going to admonish you in front of the jury about that. But I'm concerned about the appearance that that created. I understand your obligation to put questions fairly to the witness. You understand your obligations to put questions fairly to the witness. And I want you to do that,

MS. GADHIA: Then I think the jury needs to be told that there was nothing unfair because I hadn't finished my question.

THE COURT: I'm not going to tell the jury that.

MS. GADHIA: Well, then something needs to be said about the fact that Mr. McGuire should not be interrupting me, because the truth of the matter is, is that I had not yet got to the passage. He interrupted prematurely, he does that, and by doing it prematurely, I'm put in a position where I have to defend where my question is. So now the jury thinks I'm being unfair to this witness and I'm not. He is lying. He is lying and I'm going to show them every single passage. If I'm going to sit here until 4:30 today, I will do that, to show this jury what a liar he is.

THE COURT: I, I - you are completely entitled to do that and I'm not going to stop you from doing that, Ms. Gadhia.

MS. GADHIA: But that's not, that's not the issue here, Your Honour. The issue here is that you made a decision to tell the jury that I was being unfair. And I'm saying to Your Honour right now, there was no unfairness in that question. The unfairness was jumping up, interrupting my crossexamination, and that's the problem.

THE COURT: Okay, Ms. Gadhia, I'm going to bring the jury back. Mr. Kirichenko?

MR. KIRICHENKO: Could I ask for 15 minutes for cooler heads to prevail?

MR. ABBEY: And, and I would ask, Your Honour, I want to hear, hear, hear back the tape where - just before my friend objected.

MR. MCGUIRE: Your Honour, I think you’ve ruled.

THE COURT: We're not playing the tape. I will take a 15 minute break. My plan is, when the jury comes back in to say we're going to continue with cross-examination. It's very important that everyone be respectful of each other. This is Ms. Gadhia's - would you stop shaking your head before I finish speaking, Ms. Gadhia? It's important from Ms. Gadhia to be able to continue her cross-examination for her to give the opportunity to the witness to answer - for the witness to answer her questions. And Mr. McGuire, I think it's important that, you know, there are many things that you may want to cover in re-examination, but that we - you give Ms. Gadhia the opportunity to ask the questions.

[106] But when the court resumed, and before the jury came back into the court room, the issue was again raised by Defence counsel (page 19 and following):

MS. GADHIA: Myself, inclusive of Mr. Taraniuk, Mr. Abbey and Mr. Kirichenko are asking for a playback, please.

THE COURT: Of, of which part?

MS. GADHIA: Of the question before the objection.

THE COURT: Before the most recent objection?

MS. GADHIA: No, the objection that caused the discussion between Your Honour and myself, in front of the jury.

THE COURT: The, the first objection that...

MS. GADHIA: That's right.

THE COURT: ...that Mr. McGuire made to whether or not the witness had said all, all he had said, that one?

MS. GADHIA: Yeah.

THE COURT: All right.

MR. MCGUIRE: Your Honour, I respectfully submit that that issue has been decided and, you know....

THE COURT: All right, sit down. I'm going to hear the playback. ...

PLAYBACK

THE COURT: I think you ought to keep going. I’m sorry, she stopped the playback.

MR. MCGUIRE: That’s, that’s not accurate, Your Honour.

MS. GADHIA: Mm-hmm. You confirmed that the only thing blue sweater guy said was I'll be back. At page 64 on August 7th you confirmed that the only thing blue sweater guy said was I'll be back, and I thought when Mr. McGuire objected that I left that in, um or an I or a mm. I hadn't finished yet, the entire passage and because of that, Your Honour, and because of the argument that Your Honour and I had where you suggested that I was unfair in my question to this witness, I'm asking that you apologize to me in front of the jury and indicate that the question was fair, and allow me to continue, please. Otherwise we are going to have a different discussion altogether here about what happens at this point, because the jury was told that I was being unfair, and you sustained Mr. McGuire's objection on that issue. And that's why Mr. McGuire didn't want the playback 'cause I know that that's what happened there.

THE COURT: But that's not what the witness said. The witness didn't say the only thing that he'd said was....

MS. GADHIA: But I hadn't finished.

THE COURT: But you had asked the witness...

MS. GADHIA: No.

THE COURT: ...to - you, you had - Ms. Gadhia....

MS. GADHIA: Read the rest of the passage, Your Honour.

THE COURT: You asked...

MS. GADHIA: You cannot say....

THE COURT: ...you asked - just, just - you asked the witness if he had said the only thing that was said and he said yes. But that's not, in fact, the only thing that was said. Look at - I think we have a disagreement about the nature of the question and the, the way the question was asked and....

MS. GADHIA: I'm, I'm just asking, Your Honour, please, please, because I, I don't - if we play back and it says that you confirm that the only thing that was said was that I'll be back. And so if you read the rest of the passage, which I would have done, because it's part of my questioning, I would have gotten to page 65 where Mr. Maund asks Mr. Bitar....

THE COURT: Page 75?

MS. GADHIA: Sixty-five, where Mr. Maund asks Mr. Bitar, "Are they saying anything else to each other?" Answer, "No." And then 10 pages later, it's in my cross-examination, 10 pages later, Mr. Maund has to ask him again, "Was there anything else said?" And that's when he said, "I'm going to kill you and they were both saying it." But you can't interrupt my cross-examination when I haven't finished it and the question was fair. And I, I know that it's upsetting to hear that the question was fair, but I'm asking Your Honour to correct the impression that you gave the jury that it was an unfair question. I'm asking for that.

THE COURT: Mr. McGuire?

MR. MCGUIRE: Your Honour, the witness, I think we just heard it, basically was, was being asked whether that's all he said, now there's a reason why, the way in which to impeach a witness on a prior inconsistent statement is to go question answer on this page, you said, question answer question answer, question answer, is typically the way it's done. Not the sort of lob ball sort of questions and that's all - but I was objecting, and as Your Honour has pointed out, the witness had said, yes, so it sounded like to the witness, the question had been finished. I can't read Ms. Gadhia's mind or where she's going to go. All I knew was that wasn't correct, because, in fact, that wasn't all the witness had said about the exchange between Mr. Beals and Mr. Shraim, because on page 75, yes, his, his memory is refreshed, but he clearly goes on to say that they both were threatened - threatening to kill one another. So that's why I made the objection. Your Honour had the opportunity to look at page 75, made a ruling, and in my respectful submission, instead of dealing with that, in a professional fashion, Ms. Gadhia lost her temper in front of the jury and is now trying to put the genie back into the bottle that she let out and have Your Honour do something extraordinary, and criticize me for objecting to an unfair question. If I'm wrong in that objection, Your Honour would have overruled me. I would have sat down and things would have progressed. But Your Honour sustained my objection and Ms. Gadhia couldn't handle it. And that's what happens in criminal trials. Witnesses are asked questions, counsel make objections. Sometimes they're well-founded and sometimes they're not. But that doesn't lead to an excess of emotion in front of a jury, especially on a first degree murder trial. You've got to keep cool and calm. So this is - I don't know what this is.

MS. GADHIA: Your Honour....

MR. MCGUIRE: Excuse me, I'm not finished.

MS. GADHIA: I know you're not but...

MR. MCGUIRE: I'm not finished.

THE COURT: Sit down then, let him finish, please.

MS. GADHIA: All right, I'll let him finish.

MR. MCGUIRE: So I don't know what this is. I don't know what Ms. Gadhia is asking for. My objection was proper. It was sustained by the court. It didn't have to be sustained by the court and if it wasn't sustained by the court, I would have done what I do when I make objections that aren't sustained by the court. I would have sat down and continued on with the crossexamination. I don't see how I could be faulted and I don't see how Your Honour can be faulted. And I don't see how you apologizing to the jury for Ms. Gadhia's loss of temper, is the appropriate remedy here. I didn't cause this. I didn't cause Ms. Gadhia to lose her temper. I can, I can tell Your Honour that in almost every jury trial that I do, I make objections. And again, some of them are sustained and some of them aren't. And one - the ones that are sustained, counsel don't lose their temper. And the ones when I don't get an objection sustained, I don't lose mine. So, you know, I don't know what we're doing here.

THE COURT: Ms. Gadhia?

MS. GADHIA: Mr. McGuire's objection was that I said the words, "The only thing Devin Beals says that day." I didn't say that day. So he objected to something he heard in his head. And Your Honour sustained it very quickly, and then suggested that I was being unfair to the witness because Mr. McGuire said I was being unfair the witness. With respect, I was not unfair to the witness. I said exactly what was read back in the playback that he confirmed that that was what was said, that was the only thing that was said, and I hadn't finished my question. So premature once again. As for Mr. McGuire's I take the high road suggestion that he doesn't - he sits down once an objection has been overruled, yesterday, we spent an entire afternoon discussing a mistrial and Your Honour had ruled that there wasn't going to be a mistrial and Mr. McGuire kept on his feet. And I noted that Mr. McGuire, when he continues on, isn't told, sit down, sit down, Mr. McGuire. He doesn't get told that. He gets the privilege of making his argument. And so I am asking, in fairness to what has been left with the jury, in fairness, because Your Honour knows that Mr. McGuire's objection was wrong after hearing that playback, and I do not want this jury thinking that I am being unfair to this witness.

THE COURT: Are you finished?

MR. TARANIUK: Your Honour, can I confirm something?

THE COURT: Yes.

MR. TARANIUK: We're - just on the audio, were the words on August 7th, "You confirmed again, that all that was said." Were those the words?

THE COURT: I think so but....

MR. TARANIUK: Because, Your Honour, this is a problem, because if those are the words, there's nothing to suggest that the way - that Ms. Gadhia was preventing the witness from saying that at another point in time he changed the answer, or that she was confining him at that point in time. And as a result of that, it's my view that the Crown's objection was improper, wholly improper, in, in that circumstance. He should never stood up and that standing up amounted to interference. And I would suggest that Mr. McGuire should be told not to stand up and interfere in defence cross-examination like that when it's unwarranted, because what it does is it breaks up the pace of the cross-examination. It stops Ms. Gadhia from making an important point that the jury should be able to hear. That's a problem. That's the problem here that I see.

THE COURT: Anyone else, Mr. Abbey?

MR. ABBEY: No, Your Honour.

THE COURT: Mr. Kirichenko?

MR. KIRICHENKO: No, Your Honour.

MR. MCGUIRE: Your Honour, can I just respond to what Mr. Taraniuk said, Your Honour, with leave?

THE COURT: Yeah.

MR. MCGUIRE: So the suggestion is misplaced with respect to Mr. Taraniuk. The, the witness can't be left with memorizing hundreds of pages of transcript. If the suggestion was left to him on August the 7th, and, and, and the question was then asked, it's misleading, because 10 pages later he goes on and says other things that Mr. Beals, in fact, said. So that was the basis of the objection. Now, my objection may or may not, in the future, be sustained, or, or, or, or over, overruled, but for counsel to stand up and suggest that you're going to order me not to make objections is absurd. People - counsel are supposed to make objections in good faith and that's what I did. And I'm not going to be told by Mr. Taraniuk to sit down and not interfere. I, I object to being told that my intention is to interfere with the cross-examination. Ms. Gadhia has been cross-examining for some time. I basically have made two objections, both sustained by the court; one to prevent inadmissible evidence being put into this case. I think that's a pretty well founded objection.

MR. TARANIUK: Your Honour, the effect of the - the objection was improper and the effect of it was to interfere with Ms. Gadhia's crossexamination.

MR. MCGUIRE: I resent that.

THE COURT: All right.

MR. MCGUIRE: I resent that.

THE COURT: Sit down. Sit down.

MR. MCGUIRE: That's, that's impugning my integrity and he's done it before in this trial.

THE COURT: Please sit down.

MR. MCGUIRE: And it's and it's, it's...

THE COURT: Okay.

MR. MCGUIRE: ...unprofessional and he's not...

THE COURT: Sit down.

MR. MCGUIRE: ...allowed to impugn...

THE COURT: Sit down, Mr. McGuire.

MR. MCGUIRE: ...my integrity.

THE COURT: Sit down, Mr. McGuire. All right.

WOOLLCOMBE, J. (Orally): This is a first degree murder trial where there is a lot at stake. In the three days that we have been calling evidence, emotions have been very high, and in my view, there is a real risk that this trial will not be able to continue if everybody does not comport themselves in the highest traditions of the Bar, and professionally and respectfully. It is not of assistance for people to make, what I would characterize, as very personal allegations against the lawyers on the other side. I think all of you need to be very careful about not doing that. I think that the level of respect that has to be shown to each other has to increase. And I am going to ask all of you to try to take the emotion out of this to the extent that you can and increase the level of professional courtesy and civility to each other, both when you are in front of the jury and when you are not. It is not helpful to have people clearly losing their tempers at each other. It does not help your case and does not help the process and you do a disservice to the profession.

In my view, when witnesses are being questioned about what they have previously said, the appropriate method of cross-examining is to take them to the passage and read to them the passage so that it is fairly put to them. That was not what Ms. Gadhia did. But what she did do was to suggest that on this page the only thing that the witness had said was that Dev had said, he said, wait, right there, I'll be right back. Which, when I look at it, with the benefit of hindsight, given the next question, is are they saying anything else to each other? And the answer is no, it is probably a fair characterization of what was said on that page. I accept that there were other things that Mr. Maund, who was doing the examination in-chief, brought out 10 pages later, and that it is only fair for the witness to be able to explain that there were other things that he said later. That probably is better done in re-examination if Ms. Gadhia chooses not to adduce it in cross-examination. But I think part of the problem is that the there was a question asked before the full passage had been put to the witness.

So going forward, it is my view that when witnesses are being cross-examined on what they have said previously, before eliciting an answer, it is important, Ms. Gadhia, and I say this to all of you who are going to be cross-examining on statements, that the passage be read, the witness be asked to agree with whether that is what they said, and, and, and that the passage actually be put in full rather than a question being asked, and the witness answering too quickly. I think it is important that everyone be fair to the witnesses. And I am not sure that it was entirely fair to ask the witness to answer the question, "This is the only thing he said," when it is not the only thing he said on that day. It may be the only thing he said on that page.

MS. GADHIA: But I didn't say it was the only thing he said on that day. Please read - play - do the playback again. And that's where the unfairness is, is that that's what Mr. McGuire put into your head by saying that that's what I said. It's not.

THE COURT: I am going to ask the jury to come back in a moment and I think what I am going to say to the jury is that it is important that cross-examination to the witness be fair and that - Ms. Gadhia, would you let me finish, please? You look like you are about to stand up again. Please don't. That it is important that crossexamination to the witness be fair. That this witness was asked whether the only thing that he had heard Dev say on that page was he said, "Wait right here, I'll be back," and he agreed that it was. That that was a fair question in relation to that page. And that we are going to continue with cross-examination.

MS. GADHIA: Your Honour. You, you....

THE COURT: Ms. Gadhia.

MS. GADHIA: Yes.

THE COURT: I haven't finished.

MS. GADHIA: Okay. Okay.

THE COURT: I'm also going to ask Mr. McGuire that you wait until questions have been asked and the passage has been put to the witness before standing up and objecting. And, Ms. Gadhia, I think you need to put the questions that were asked and the answers that were given to the witness before asking the witness to confirm that they did or did not say something. So we're going to have a jury back now

MS. GADHIA: Okay. A few points of reference. Telling the jury that the questions have to be put to the witness fairly, confirms that Your Honour is suggesting that I didn't...

THE COURT: No...

MS. GADHIA: ...put the question....

THE COURT: ...that's not what I'm doing at all. What I'm going to say to them is that the question does reflect what was on this page. If you listened to what I said.

MS. GADHIA: I'm, I'm sorry, I didn't hear you clearly then. Please tell me again what it is that you're going to be...

THE COURT: Well, let me just...

MS. GADHIA: ...telling the jury?

THE COURT: ...let me just write it down because I didn't have it written down. That the crossexamination on page 65, which is where we had ended off, was whether the - whether the only thing that had been said by - on - when cross-examined on that page, it was suggested to the witness that the only thing that he'd said when asked what the guy in the blue sweater had said was he said, "Wait here, I'll be right back." And that that was the only thing that he'd said on that day and he confirmed that was the only thing that he said on that page.

MS. GADHIA: Not on that day.

THE COURT: Sorry, not on the day, on that page.

MS. GADHIA: Yes, okay, but the problem is the fact that Your Honour admonished me in front of the jury in a - in suggesting that I was unfair to the witness. I had not finished my question. And I'm asking that Your Honour say to the jury, that I was premature in sustaining Mr. McGuire's objection. We did a playback and Ms. Gadhia was not unfair to the witness. She hadn't finished her question and I'm going to allow her to continue, because that is the right way of setting this problem straight.

THE COURT: You know what, I'm not, I'm not going to say that because I'm not sure that you, you - I think you were finished the question and that's evident by - the way it came across, Ms. Gadhia - just, just listen to me - was that you were finished because the witness answered the question. MS. GADHIA: He answers while I'm mid-sentence.

THE COURT: Well, what you need to do is you need to control the witness then. There was a pause and he answered.

MS. GADHIA: No, the pause was the, the recording stopped because Madam Reporter stopped at that point and there was a nice pause there. If we want to play it back so that the entire thing and Mr. McGuire's...

THE COURT: Okay.

MS. GADHIA: ...objection midstream can come back on again, we can hear it. Mr. McGuire objected prematurely. He did not let me go through the process. And can I just add, this witness, I am trying to truncate the amount of time I spend reading out passages to him. So I'm saying things to him and if he agrees to it, then great. If he doesn't agree to it, then I take him to the passage. I'm trying my best not to go - but I will. Now, I'm going to. I'm going to go through every single passage and read pages and pages of material, if I have to, in order to satisfy what the court's requirements are. But I am asking, I am imploring this court right now, because it was an unfair objection that was sustained to the defence. It was an unfair exchange in front of the jury. It was unfair to suggest that I was being unfair to this witness. And I want that corrected, please.

THE COURT: I'll tell them I was premature to cut it off.

MS. GADHIA: Thank you.

THE COURT: The jury back, please.

[107] This is a prime example why this was clearly a very difficult trial. The above lengthy passages clearly demonstrate the high emotion, persistence, frustration and personal attacks by counsel and the need for forceful intervention by the trial judge to maintain order.

[108] There were raised voices, including by the Defence counsel; shaking Defence counsel’s head when the trial judge was speaking; Defence counsel refusing to accept a ruling the trial judge had made and was asking for unreasonable ruling – that the Crown stop objecting and that the trial judge apologize to the Defence counsel in front of the jury.

[109] The first few paragraphs of the trial judge’s ruling demonstrate she recognized the highly inappropriate conduct of counsel and attempted to remind counsel of the need for proper decorum and civility in the courtroom.

[110] The essence of the Defence position is that the trial judge demonstrated bias when she told Defence counsel that the question was unfair. As stated above, the question was ambiguous.

[111] In my view, Defence’s wording of the question caused this long and difficult exchange. I do not accept the way the Defence submits the question to Mr. Bitar was clear and “was not incorrect or inaccurate”.

[112] Defence counsel appears to want to litigate the issue whether her objection was proper in this application. The Defence devotes many pages in the factum attempting to justify why she was right and the trial judge was wrong in the ruling. Defence calls the trial judge’s statement in front of the jury that Defence counsel put the question “fairly and accurately” as “baseless”. I do not agree with the Defence counsel, but more importantly, the trial judge’s intervention and ruling fails to demonstrate any bias.

[113] The subsequent position of the Defence counsel that she had not finished with the question is not credible since the question was asked and the witness answered the question – a point made by the trial judge in the exchange with Defence counsel.

[114] The Defence also sought to justify the question by saying that the “next question” would have made the earlier question fair. However, no one knows what the next question will be or whether it will even be asked. Each question must be fair and elicit admissible evidence.

[115] Unfortunately, the Defence became upset with the trial judge’s ruling to the point where the trial judge asked Defence counsel if she “needs a minute”. As stated above, Defence counsel characterizes this as “condescending” and is evidence of bias.

a) First, this subjective characterization has no merit. There is nothing in what or how the trial judge said to suggest it was said condescendingly;

b) Second, the Crown and trial judge properly delayed dealing with the Defence counsel’s conduct until after the jury was excused and then gave the explanation for making the statement. The trial judge agreed that that Defence counsel was raising her voice and approaching the witness in an inappropriate manner. The trial judge stated that she expressly suggested the “break” for the benefit of the Defence counsel to avoid the discussion about her conduct in front of the jury;

c) Third, while the Defence now disputes that she raised her voice or was she aggressive towards the witness, the subsequent discussion is illuminating. After the Crown made the objection and the jury exited, the Crown submitted that Defence counsel was raising her voice and acting inappropriately to the witness. When the court asked if the Defence counsel wanted to say anything in response; Defence counsel had nothing to say.

[116] In any event, after great persistence by Defence counsel, while the trial judge did not agree the comment was unfair or agree to apologize to Defence counsel in front of the jury, the trial judge did advise the jury that she had prematurely cut off Defence counsel.

CLERK REGISTRAR: Twelve jurors present, Your Honour. Please be seated.

THE COURT: Thank you. Good morning. When we broke, Ms. Gadhia was in the midst of cross-examining Mr. Bitar about evidence that he'd given at the preliminary inquiry, and she was on a passage on page 65 where she suggested to Mr. Bitar that the only thing only thing that he had said that the guy in the blue sweater had responded was, "Wait here, I'll be right..." - he said, "Wait here, I'll be right back." And he, as you'll recall, Mr. Bitar confirmed that that was the only thing he'd said and there was an objection and Ms. Gadhia was stopped in her cross-examination. We had a discussion about fairness of cross-examination. It's obviously critical, the cross-examination be fair. And I had now reflected on what happened. I think I was premature to cut off the cross-examination, given what that witness said on that page. So Ms. Gadhia is going to now continue her, her cross-examination. Could we have the witness back, please.

[117] If anything, the entirety of the above passages makes it clear that the trial judge was open minded; not biased; agreed with the Defence to some extent and instructed the jury accordingly. I do not see the entire exchange as evidence of bias.

[118] The Defence suggests that the Crown could always clarify the answer in re-examination. This is not an appropriate response to the objection because, if the question is unfair to the witness, the damage and prejudice may not be fully correctable by a subsequent re-examination.

[119] In conclusion, the trial judge’s response to the actual wording of Defence counsel’s question was reasonable and appropriate given the words used by the Defence counsel and does not demonstrate the trial judge’s bias or a reasonable apprehension of bias.

[120] I do not accept that the trial judge’s conduct or statements in this example, before the jury and while the jury is out of the courtroom, demonstrates bias or a reasonable apprehension of bias.

[121] Having also heard the audio for the above exchange, I see or hear nothing in the trial judge’s voice which suggests the trial judge’s voice or tone demonstrates she was biased or a reasonable apprehension of bias.

b) Examination in Chief of Mr. Bitar (February 11, 2020)

[122] On uncontentious matters, to ensure trial efficiency without impairing trial fairness, lawyers should lead a witness. See R. v. Rose, (2001) 2001 CanLII 24079 (ON CA), 53 OR (3d) 417 (C.A.):

[9] A leading question is one that suggests the answer. It is trite law that the party who calls a witness is generally not permitted to ask the witness leading questions. The reason for the rule arises from a concern that the witness, who in many instances favours the party who calls him or her, will readily agree to the suggestions put in the form of a question rather than give his or her own answers to the questions. Of course, the degree of concern that may arise from the use of leading questions will depend on the particular circumstances and the rule is applied with some flexibility. For example, leading questions are routinely asked to elicit a witness' evidence on preliminary and non-contentious matters. This practice is adopted for the sake of expediency and generally gives rise to no concern. Leading questions are also permitted to the extent that they are necessary to direct the witness to a particular matter or field of inquiry. Apart from these specific examples, the trial judge has a general discretion to allow leading questions whenever it is considered necessary in the interests of justice: Reference Re R. v. Coffin, 1956 CanLII 94 (SCC), [1956] S.C.R. 191, 114 C.C.C. 1 at pp. 211-12 S.C.R., p. 22 C.C.C.

(emphasis added)

[123] The Defence points to the trial judge’s response to a Defence objection to the Crown’s examination-in-chief of Mr. Bitar as evidence of bias in favour of the Crown and against the Defence counsel.

[124] The Defence goes on to also suggest that the trial judge readily accepted the Crown’s position while resists or strongly resists the Defence position on issues. The Defence submits in its factum:

In stark contrast, when Ms. Gadhia objects to the Crown’s failure to follow the rules, she is met with resistance, and inappropriate commentary. One of many examples can be found on February 11, 2020, at 12:36pm, Ms. Gadhia objected to the Crown leading the witness, Mr. Bitar, regarding his birth date. Ms. Gadhia asked that the Crown not lead the witness.

[125] The Crown’s examination-in-chief started as follows:

Q. Let's start by asking some general background questions about you. Can you tell us where you were born?

A. I was born in Syria, 1999.

Q. And when did you come to Canada?

A. Late 2000.

Q. And I guess you're around 21 years old now?

A. Twenty.

Q. You're 20. Okay. So your birthday is coming up?

A. Yes.

MS. GADHIA: I'm going to be asking - I know that seems like an inconsequential lead that just happened just now because we didn't actually have that information before the court. But could I ask that my friend not lead with this witness, please?

MR. MAUND: Yeah. As I understand it, Your Honour, I'm entitled to lead on introductory non-contentious matters. That's what I was doing. I'll certainly avoid leading when we get to the heart of the matter.

THE COURT: When we get to anywhere near the date in question - is there some issue about the date that he came to Canada or his age that....

MS. GADHIA: No. The issue is that we didn't actually have his birth date and my friend gave information that was not before the court.

THE COURT: Well....

MS. GADHIA: So it, it - I'm just asking that we stay within the limits of the....

THE COURT: He said his birthday is coming up. If he's 20, I mean, it's a simple - it's a math.

MS. GADHIA: My birthday is coming up too, but it's next month. I'm, I'm trying to ask that we follow the rules. That's all I'm asking.

THE COURT: Well, it's hardly controversial. Go ahead, Mr. Maund.

MR. MAUND: Thank you, Your Honour.

[126] I find nothing objectionable to the ruling or the way the trial judge handled Defence counsel’s objection. Mr. Bitar had said he was born in 1999 and there was nothing relevant or in dispute as to whether Mr. Bitar was 20 or 21.

[127] The Defence also submits that the trial judge simply needed to say it was sustained or overruled is overly simplistic. The trial judge was entitled to enquire whether there was anything controversial about the witness’s age. Trial judges are required to provide some, even a brief explanation for a ruling. That is exactly what the trial judge did in this case.

[128] Defence counsel’s objection was wrong. In any event, this example does NOT, as Defence counsel submits, “demonstrates her [the trial judge’s] contempt towards Ms. Gadhia”.

[129] This example fails to demonstrate any bias or reasonable apprehension of bias by the trial judge.

c) Cross-Examination of Det. Heyes (February 24, 2020)

[130] It is impermissible for counsel to ask a witness to comment on the credibility, reliability or veracity of another witness. The opinion of a witness as to the truthfulness of another witness is irrelevant and inadmissible. See R. v. Henderson 1999 CanLII 19924 (ON CA), [1999] O.J. No. 1216 (C.A.) at paras. 14-15.

[131] The Defence points to this exchange as showing the trial judge’s “demonstrable bias” towards Defence counsel by interrupting the cross-examination of Det. Heyes and the trial judge ruling that Defence counsel’s question would introduce “illicit” and “irrelevant and inadmissible” evidence in a raised voice.

[132] The Defence points to the following excerpt from the Defence counsel’s cross-examination of Det Heyes about by Mr. Buckland’s police statement (page 121 and following):

Q. Okay. I'm going to suggest to you that despite the various lies that Mr. Buckland tells you, for example, about his car and the date on which the car was sold, you know, the, the knife and I'm going to get to the knife, and the threats to his life, these are kind of three topic areas that I'm going to suggest are outrageous lies, okay?

A. Well, most people that would come in and speak to me when they've been arrested for a crime like this would lie to the police.

Q. I'm glad you say that now, 'cause earlier you were having a difficult time saying that most people do that. But....

A. No, but I'm talking about being arrested for a crime and being investigated for murder. Of course he's going to be apprehensive to say something to me until we established a good rapport in that room. And that's what I felt I had with him and that's why he told me some stuff later on. Yes.

Q. So, specifically, there were some kernels of truth in his evidence and what I was suggesting to you by giving the example of Danny not being kicked and no injuries, was that that was a kernel of truth, that he was being honest with you about that.

THE COURT: This witness can't comment on, on...

MS. GADHIA: I, I appreciate that.

THE COURT: ...the honesty. His, his opinion is worthless. It is of no evidentiary value to the jury. They've been told that and asking the question can't be a relevant question, Ms. Gadhia.

MS. GADHIA: I, I appreciate that, Your Honour, but Your Honour also understands that this officer, over and over again, said Ms. Fishman has no reason to lie. Other people are telling...

THE COURT: Well, he said...

MS. GADHIA: ...the truth.

THE COURT: ...that in the interview and that's irrelevant as well.

MS. GADHIA: I, I appreciate that as well. But that is something that this officer continually says throughout his, his interview, not only with Mr. Buckland but Mr. Walters, and I think it's only fair that there's a balancing or an understanding that his opinion with respect to that, even in the video, is of no consequence.

THE COURT: Okay, there's no balancing. His opinions are, with respect, worthless to the jury in terms of what he said on the video and what he says in this court about the veracity of anything Mr. Buckland said - Mr. Buckland said or Mr. Walter said on the video. The jury has to decide the truth, or whether those statements that they made, what they said and whether they were true. It's not relevant what this officer thinks so I'm not going to have that questioning. There's no point to it. It's irrelevant. It's inadmissible evidence.

MS. GADHIA: Okay.

THE COURT: All right.

[133] There can be no dispute that the Defence counsel sought to have Det. Heyes comment on the veracity of Mr. Buckland’s statement to the police by asking whether “there were some kernels of truth in his evidence and what I was suggesting to you by giving the example of Danny not being kicked and no injuries, was that that was a kernel of truth, that he was being honest with you about that”.

[134] The Defence submits that “each time her Honour claims that counsel is putting questions to the witness that are inadmissible, or that she is being unfair to the witness, it undermines Ms. Gadhia in front of the jury”. The problem, with this example, is that Defence counsel asked an improper question and it required the trial judge to intervene to stop the witness from giving inadmissible evidence. The Defence cannot blame the judge or suggest this was evidence of bias since the Defence counsel chose to ask an improper question.

[135] Shortly after the above exchange, Defence counsel attempted to have Det. Hayes testify as to whether Mr. Buckland “expected” a knife fight or a fist fight. The Crown objected as it sought Det. Hayes to testify as to what Mr. Buckland “expected”. Again, a very long exchange took place where Defence counsel could not or would not appreciate the impropriety of the question she had asked, the Defence counsel proceeded to make an inappropriate comment to the trial judge that the trial judge was telling Defence counsel “ad nauseum” that her question is irrelevant or inadmissible:

THE COURT: Okay, the question was whether - that the witness - to, to this witness, what - that Mr. Buckland wasn't expecting a knife fight. If the question was Mr. Buckland repeatedly told you he wasn't expecting, expecting a knife fight, that would be admissible. But the officer's opinion that Mr. Buckland wasn't expecting a knife fight, isn't admissible and there's a significant difference. So....

MS. GADHIA: I'm going to suggest to you that Mr. Buckland wasn't expecting a knife fight is how I framed it. I....

THE COURT: But, but he can't comment on what Mr. Buckland was suggesting, you agree, or was expecting? How could he possibly say - mister - you can say to him, Mr. Buckland told you he wasn't expecting a knife fight. That's true. Or in these passages, these 15 times, Mr. Buckland told you this, and as a result of that, did you, did you engage in that, did you, did you - what did you do as a result of it. Those are all entirely legitimate. But what you can't put to him is that Mr. Buckland wasn't expecting a knife fight because that’s asking him to comment on the veracity of Mr. Buckland's statement, which he can't do.

MS. GADHIA: I, I don't actually see the difference in the type of question that Your Honour has suggested versus the question I posed, because it elicits the same response. He would know that Mr. Buckland has told him that.

THE COURT: Oh, but the question, the question, the way it's being asked is whether he thinks that Mr. Buckland was expecting a knife fight. That was the way the question was asked, and whether he thinks Mr. Buckland was expecting a knife fight or not is irrelevant. The question, the question, did, did you - did he repeatedly tell you he wasn't expecting a knife fight isn't - is a legitimate question. But whether what he thinks is not.

MS. GADHIA: Okay. So can I ask then, please, rather than suggesting in front of the jury ad nauseam as much as has been said so far, that I am putting irrelevant or inadmissible questions to the jury or to the witness all the time. It's getting to be unfair.

[136] The question asked by Defence counsel was inadmissible because it sought to have Det. Heyes convey his understanding of Mr. Buckland’s state of mind. Defence counsel did not appreciate the distinction the trial judge was making regarding the wording of the question.

[137] Yet, the Defence’s factum states by the trial judge conduct in this exchange demonstrated:

Her Honour is effectively stating that she cannot help herself, and will continue to mistreat counsel in this manner, but can only commit to trying to do so outside the presence of the jury.

[138] This inappropriate submission is rejected, it is wrong, unsupported and needs no further explanation.

[139] The Defence also submits that the trial judge was “yelling” during this exchange. I do not find that the trial judge was yelling but was speaking in a loud voice – no less so than Defence counsel was using to the trial judge.

[140] Having read the transcript and listened to the audio of the above, I see nothing improper with the manner the trial judge dealt with this issue. Nothing in this example demonstrates bias or a reasonable apprehension of bias by the trial judge.

d) The Victim's Character (February 12, 2020)

[141] Character or disposition evidence of a victim is, absent a Scopelliti ruling, irrelevant and inadmissible. See R. v. Scopelliti, (1982) 1981 CanLII 1787 (ON CA), 34 O.R. (2d) 524 (C.A.). The potential consequences of getting into this area with a witness are very serious and can potentially cause a mistrial.

[142] The Defence had not brought a Scopoletti application prior to or during the first trial.

[143] Defence counsel was cross-examining Mr. Bitar. The Defence submits this example demonstrates the trial judge’s interruption during her submissions as evidence of bias.

[144] Early on this day, the Defence had gone into some issues touching on the propensity of the victim (such as the victim’s drug use and drug dealing, the victim’s older brother being in jail). Continuing in this vein, the Defence counsel then went directly to what can only be described as the victim’s propensity for violence:

Q. See Heidrah, you know - Heidrah you know to be a bit of a hothead. Am I right?

A. Not all the time, no.

Q. Okay, some of the time then?

A. Yes.

Q. You'll admit that?

A. Yes.

Q. He's a hothead.

A. Not in general, no.

Q. But sometimes?

A. Yes.

Q. You've seen it?

A. He gets upset, yes.

Q. Yeah. But I don't mean he just gets upset. I mean, he likes to fight.

A. No, I won't....

MR. MCGUIRE: Your Honour, I have an objection.

MS. GADHIA: I'm not sure what the objection is. Do we need to have the jury out of the room?

MR. MCGUIRE: Yeah, I think we do, actually.

THE COURT: I think we probably do. I'm going to ask you to step out right now, please.

...JURY RETIRES (11:00 a.m.)

THE COURT: Mr. Bitar, I'm going to ask you to just step out of the courtroom for a moment, please.

...WITNESS EXITS (11:00 a.m.)

THE COURT: So you made a suggestion of the deceased's disposition for violence.

MS. GADHIA: It is littered throughout Mr. Bitar's evidence. There's actual foundation for his reaction to things, specifically that night, and so I am eliciting from Mr. Bitar that Heidrah was, as he's known to do, jonesing for a fight.

THE COURT: Mr. McGuire?

MR. MCGUIRE: Your Honour hit the nail right on the head. Counsel is trying to elicit a propensity for violence on the part of the deceased without filing the appropriate....

THE COURT: Should be a Scopelliti application, shouldn't there?

MR. MCGUIRE: Yes. And there's no indication of any Scopelliti application either in pre-trial, to my recollection, but certainly no paper before the court. Now counsel has adduced it, and we have to consider - well, first of all, Your Honour has to make a ruling as to whether or not counsel can do that without filing the appropriate pre-trial motion, which is specifically contemplated in the rules. And if what happened is wrong, what the remedy is because it, it could be very serious.

THE COURT: Ms. Gadhia, you know - you know you can't elicit the deceased's propensity for violence absent the Scopelliti application being brought.

MS. GADHIA: It's not referencing his propensity for violence on any other occasion, other than this occasion, and it's coming from the witnesses themselves. I'm not calling it as part of other evidence....

THE COURT: Of course, it's coming from the witnesses. Where else would it come from? The point is you can[not] elicit through other witnesses a deceased's propensity to violence. He likes to fight is a general suggestion about a propensity to violence.

MS. GADHIA: Then I can stick to the, the specifics of what was said and done that evening. Because the suggestion would be that I can't even speak to the fact that Mr. Shraim had a knife on him and that he did anything with that knife.

THE COURT: Oh, I don't think there's any question that you can...

MS. GADHIA: Right.

THE COURT: ...ask about the fact that he had a knife on him that evening. But what you can't get into is a general predisposition that he has for fighting and for violence and for liking to fight. And this idea that he was jonesing for a fight that night, whatever - I mean, what if you're going to use that term - I'm sure you're going to explain to the jury what that means. But the idea that he was looking for a fight that night is one thing. It's very different from suggesting that he had a predisposition that this witness was aware of for fighting and for getting into fights. You can't go there.

MS. GADHIA: That's fine. I'll stick to the night of.

MR. MCGUIRE: With, with respect, counsel has gone there.

THE COURT: Well...

MR. MCGUIRE: And the horse has bolted.

THE COURT: ...he likes to fight. I think I need to be - I think the jury needs to be told that it's impermissible for any - that that they should make nothing of any suggestion that he likes to fight, that, that Mr. - that, that deceased's disposition is not on trial here, and it's not something they can consider. Would you agree, Ms. Gadhia? In the absence of a Scopelliti application and a ruling that you're entitled to elicit - the question, I think was, "You know him to be a hothead, not all the time, some of the time, not in general. You've seen it, he gets upset. He likes to fight." You need to discuss that with your co-counsel?

MS. GADHIA: I, I just did, and we're all in agreement that the fact that he had a disposition to fight that evening....

THE COURT: A disposition to fight that evening - disposition is the problem, right? Prior disposition is not admissible.

MS. GADHIA: So here's the difficulty. There's a lot of evidence from a number of witnesses that are going to say that Heidrah was looking to fight, that he wanted to get the guy, that he wanted to kill him, that he wanted to find out where he lived. And all of that is in that timeframe, from the bridge incident right through and up to the grassy knoll. So throughout that, there are going to be witnesses who are going to speak to that. And it may very well be that I cannot speak to a historical disposition.

THE COURT: Oh, it is.

MS. GADHIA: Right.

THE COURT: You can't.

MS. GADHIA: But I am referencing the background that Heidrah was keen on having a fight that night based on all of the information that we have at our disposal.

THE COURT: It's not based on all the information you have at your disposal. It's not based on - it can't be based on any historical propensity for violence, right?

MS. GADHIA: I'm not referencing anything else that he's done in the past. It's just that day.

THE COURT: You're - that you - you wanted to elicit - so when you suggest that he likes to fight, that was a general suggestion of a disposition for violence. You agree that that wasn't - that that couldn't elicit an admissible answer?

MS. GADHIA: Right.

THE COURT: Right, so I got to correct that.

MS. GADHIA: But I'm not sure if the correction is, is that it's impermissible to reference his - the deceased's disposition. That's not on trial. I think the wording has to be a little bit different than that.

THE COURT: What do you think the wording has to be?

[145] I see nothing wrong with the trial judge’s conduct and ruling in this matter. In fact, the Defence counsel eventually agreed she could not elicit the victim’s general or historical disposition for violence submitting she was only asking about the night in question. But, that was not the question that Defence counsel asked the witness.

[146] The Defence suggested that she was asking about the night in question. But, that was not the question that Defence counsel asked the witness.

[147] Eventually, the Crown brought a motion for a mistrial. This motion was eventually rejected by the trial judge.

[148] The Defence then submits the trial judge listened to the Crown’s mistrial application from 11:52 a.m. to 12:05 p.m. with only one interruption but Defence counsel was “interrupted by Her Honour before she finishes her first sentence” as evidence of bias.

[149] In my view, the interruption by the trial judge was to focus Defence counsel to deal with the question regarding the victim propensity evidence. Defence counsel suggested that the Crown knew the evidence was (i.e., through disclosure) going to be adduced this way. Everything in Crown disclosure does not necessarily make the contents of the disclosure admissible at trial. The interruption went as follows:

SUBMISSIONS BY MS. GADHIA:

My friend has known about this evidence for some time. It's....

THE COURT: He didn't know the evidence was going to be adduced this way. He knows what the disclosure is.

MS. GADHIA: Okay, if Your Honour doesn't want to hear my submissions....

THE COURT: I want to hear your submissions, but the suggestion that your friend has known about this evidence isn't the point.

MS. GADHIA: It's the opening....

THE COURT: He didn't know it was going to be...

MS. GADHIA: It's the opening of my submissions.

THE COURT: ...adduced. All right, so....

MS. GADHIA: I'm just trying to get Your Honour a bit of background, and I appreciate that there has been no Scopelliti application.

THE COURT: Right.

MS. GADHIA: But it's not about that. This doesn't cross the line into Scopelliti, and the answer speaks for itself. I've already made that submission. What I'm trying to suggest to Your Honour is, is that there's no reason to throw the baby out with the bath water here. There's, there's - we can continue with the file. We can continue with the witness. All references will be made to that day on November 22nd. There's many of them.

But to be clear, the witness references Heidrah Shraim by saying, for example, it's Heidrah being Heidrah. Just because someone's described as a hothead doesn't make them have a propensity for violence. I may be considered a hothead, Your Honour may be considered a hothead. That doesn't mean either of us have a propensity for violence, so that doesn't bear fruit.

The issue surrounding Mr. Shraim's brother's phone is actually quite relevant because on that phone on that day are phone calls. So that's going to come out in evidence.

… (the dialogue between the trial judge and Defence counsel continued)

[150] I do not see this interaction as demonstrating that the trial judge was quick to accept the Crown’s position and reject the Defence’s position. Even if this exhibited a degree of impatience on the part of the trial judge, a reasonable degree of impatience is not necessarily evidence of bias where the circumstances and context demonstrate it was understandable for the trial judge to exercise control over the trial. See R. v. Finney, 2004 ONCA 866.

[151] In fact, in this example, the trial judge accepted the Defence position by rejecting the Crown’s application for a mistrial.

[152] After the Crown’s mistrial application was denied, the Defence submits that, shortly after resumption, the trial judge interrupted Defence counsel’s cross-examination using a “scolding tone”. (approx. 3:50 p.m.). I have listened to this audio several times and I hear no “scolding tone”. The trial judge was concerned this was now encroaching on an improper question. All the trial judge said was “Ms. Gadhia”. Ms. Gadhia rephrased the question, and, after some submissions, the cross-examination continued.

[153] I see nothing in this example that demonstrates the trial judge was biased or demonstrated a reasonable apprehension of bias.

e) The Edited Statements (February 18, 2020)

[154] On February 3, 2020, the trial judge released reasons setting out which portions of prior statements were to be edited. On February 5, 2020, the Crown sent the edited transcripts to all Defence counsel electronically. The edited portions had been “blacked out” in the transcripts. The evidentiary portion of the trial started on February 10, 2020. Det. Heyes was to testify on February 18, 2020 and would introduce the edited statements.

[155] No objection had been received from the Defence counsel to the edited transcripts prior to the morning of February 18, 2020 (13 days after sent to the Defence) until just before Det. Heyes was to take the stand to introduce the edited video and transcripts. At that time, Defence counsel took issue that the excised portions of the “blacked out” transcripts were improper.

[156] The Defence submits that the trial judge’s ruling and the way the trial judge ruled regarding edited video and transcript of a statement to the police demonstrated the trial judge’s bias.

[157] The following exchange took place (prior to the jury entering the courtroom) on this issue:

THE COURT: Thank you. Is there some explanation for why it is that, Ms. Gadhia, that there was nothing raised about the manner of this editing from the time that the PDF was provided on Wednesday, February the 5th until today?

MS. GADHIA: Yeah, because they're almost 300 pages each and...

THE COURT: It would've been...

MS. GADHIA: ...and I'm.....

THE COURT: ...abundantly clear by even opening the PDF though, the manner in which the editing has been done, right?

MS. GADHIA: Sure, but that was not my concern 'cause I was busy preparing for another witness. So realistically, I don't have 30 hours in a day to do this. I have a....

THE COURT: But, but you didn't need 30 hours. All you needed to do was to open it and say, oh, this has got...

MS. GADHIA: You don't - Your Honour...

THE COURT: ...large blocks of this.

MS. GADHIA: ...does not need to start off the week by yelling at me and telling me how I've been incompetent and done something wrong. I'm expressing to Your Honour that I was busy last week. It was not my concern. As I was going through the thing, I noticed it and said to myself, this is a bit excessive with the blockage. I'm sorry that this is a big problem for my friend and that there's copies done and he's done it in the past, and Your Honour will probably rule and say it's perfectly permissible to do it this way. I'm just raising the comment, because from my perspective, it's excessive. Now, the excessiveness of it shows that there are more than just passages that actually references information that the jury is going to say, why is this information being kept away from us? In the past, when I've done it with other courts, they've actually taken that portion out. And my friend's comment that somehow he's being fair so that the paging doesn't change, I don't know if that's actually true. Because from our perspective, it would be a lot better not to have these big blocks of vetting in the material. And I'm sorry that it got raised on the Monday morning or the Tuesday morning after the weeks have passed in getting this material to the court. I'm just trying to keep on top of everything and this is just one of the comments I wanted to make. So there's no reason to come down on me first thing in the morning, Your Honour.

THE COURT: No, I asked if...

MS. GADHIA: Second....

THE COURT: ...there was some reason why...

MS. GADHIA: And explained it to you.

THE COURT: ...it's 14 days later.

MS. GADHIA: I have explained it to you, right?

THE COURT: All right.

MS. GADHIA: It's a very difficult trial. There's a lot of material in this case. There's a lot of stuff that's been happening, that's changed the dynamic of this case, and I'm dealing with it. And it's not the only thing that we have going on in our lives. Let's be clear, because I'm running a practice. I'm running other calls, I'm running other clients, and I'm running to the jail to see my client because I don't get to see him as often as I'd like here. So there's a lot that happens in a file. And the Buckland, Clive Walters’ statement, nobody's raised it up until this point, and I happen to see it, I'm going to raise it because I think it doesn't look right. I think there was a better way of doing it that would have at least not interrupted the flow. The big, black blockages within the transcripts interrupts the flow, and, and Mr. Taraniuk is absolutely right. The way his reference to his client is made there speaks to something. And it speaks to something that whether the jury is instructed to or otherwise, they're going to say Mr. Walters said something here about Shayne Beals. And now we're not being told about it, because it's so clear in that passage. There are other portions in the passage that didn't get vetted out. And to be fair, Mr. Abbey may not have gone page-by-page to say there's another reference to stealing. But let - we have a general agreement that any reference to stealing for Clyde Walters was going to be vetted out. So it's not an impossible task. And then to, to basically throw that at that defence. We're all trying our...

THE COURT: It's been done.

MS. GADHIA: ...best to stay...

THE COURT: The reference....

MS. GADHIA: ...on top of this.

MS. GADHIA: And, and, and that's, and that's exactly the point. So when Mr. McGuire stands up and say this is the first time and it wasn't one of the requested edits, you know, there are - there's a, there's a nicer way to deal with issues like that. That's not the biggest argument in the room. So perhaps everybody can be a little bit more civil with each other in this courtroom and treat each other with a little bit more respect, rather than flinging accusations around. It's, it's much easier if we all work together and do our jobs the way - none of us are taking any issue with Your Honour's suggested way of cross-examining. The obvious suggestion is that we didn't do our jobs properly last week. …

THE COURT: The question I asked was about why there hadn't been any notification.

MS. GADHIA: And I, and I'm explaining to you. We've been very busy.

THE COURT: All right.

[158] The Defence suggests it was inappropriate, and done in an improper manner, for the trial judge to inquire of Defence counsel why this had not been done and raised earlier.

[159] Clearly, the Defence counsel’s failure to view or consider what had been sent to her 13 days earlier and only make it an issue immediately before the witness was to testify disrupts the trial for all counsel, witnesses and jurors. The trial judge gave Defence counsel an opportunity to explain why she had not looked at the excised transcript for 13 days. This approach was not only appropriate but was clearly being reasonable to Defence counsel.

[160] Again, the Defence in its factum suggests this indicates a “lack of cordial politeness” and “distaste towards Ms. Gadhia”. I find these descriptions of the trial judge’s conduct or manner with which she dealt with Ms. Gadhia to be totally inappropriate, entirely without foundation in the transcripts or the audio recordings, wrong and do not demonstrate bias or a reasonable apprehension of bias by the trial judge.

[161] I find nothing in this example as demonstrating any bias or a reasonable apprehension of bias by the trial judge.

f) The Cross Examination of Mr. Suri (March 4, 2020)

[162] The proper way to impeach a witness on a prior inconsistent statement was a continuing issue at this trial. On February 12, 2020, as a result of counsel paraphrasing what a witness had said in a prior statement, the trial judge distributed a copy of a paper written by Justice Corbett describing the proper way to impeach a witness with a prior statement. Essentially, it provides that if the cross-examiner’s suggestion to a witness is accepted, then counsel can move on. If the cross-examiner’s suggestion to the witness is not accepted but the witness said something different in an earlier statement, then counsel can, if they wish, impeach the witness by establishing a prior statement was made and then taking the witness to the exact wording in the prior statement, thereby drawing the distinction between what the witness said to the court and what the witness had previously said in the statement. Precision as to what was said in court and what was previously said is key.

[163] Where the cross-examiner suggests to a witness what the witness allegedly said earlier to the police, then the witness, who does not have the statement before them, can be unfairly induced into agreeing with the suggestion, even though the suggestion may not be exactly what the witness had previously said. If the suggested wording is not exactly what was said in the statement but accepted by the witness, re-examination may do little to overcome this prejudice to the witness’s credibility. Even if the witness’s exact words from the prior statement is dealt with in re-examination, this may leave the trier of fact with rationalizing or being confused with the two different statements of the witness. These issues and others are avoided if impeaching a witness with a prior statement is done properly.

[164] I go through this because, Defence counsel refused to accept the trial judge’s ruling on February 22, 2020 as to the proper way to impeach a witness. This became a continuing issue with Defence counsel and resulted in a number of interruptions in the trial such as the one above on February 18, 2020. What is also significant is that Defence counsel continued, during this application, to disagree with this ruling, suggested it was a matter of “style”. In R. v. Morillo, 2019 ONCA 714, the Court of Appeal summarized that it is the inconsistency with witnesses wording in the court testimony and what was accurately previously said to the same witness:

[50] It is commonplace that an opposing party can impeach a witness by showing that, on a prior occasion, the witness made a statement inconsistent with his or her testimony about the same subject-matter in the current proceedings. That a prosecution witness made the prior statement under oath at a prior trial of the same charge does not prohibit its use for this purpose. The nature and extent of any inconsistency are important factors for the trier of fact to consider in assessing the weight to assign to the witness’ testimony.

[51] Most often for impeachment, the cross-examiner will have a copy of the relevant statement or portions of it in hand. This ensures that what was said previously is accurately put to the witness….

(emphasis added)

[165] The following lengthy passage on March 4, 2020, demonstrates the extremely difficult situation the trial judge found herself, once again, dealing with impeaching on prior inconsistent statement. The following exchange took place (page 119):

Q. And so, when you're drinking a lot and consuming drugs, a blackout is not uncommon for you.

A. It is not uncommon if I overindulge, yes.

Q. Okay.

A. I just don't drink a few and all of sudden lose my brain, it takes a bit of consumption.

Q. Okay. And a bit of consumption is significantly more than you did the night of November 2nd.

A. Yes.

Q. All right. So, November 22nd is kind of like an average range rather than a top range.

A. I – I don't....

Q. Average range of consumption. Average range of consuming alcohol and drugs.

A. Like, underneath the bridge that day, I drank quite a bit.

Q. Yeah. Yeah. And you were quite clear with the officers when you spoke to them that first night that you drank a lot.

MR. MCGUIRE: Well, perhaps counsel can – can point to that particular passage, 'cause I know where it – what – what was said about it.

THE COURT: All right. So, I think what we'll do right now is we'll take our lunch break.

MS. GADHIA: Please.

Jury leaves

MS. GADHIA: Can I have a word, Your Honour, before we break?

THE COURT: Yes.

MS. GADHIA: My cross-examination, I am not obligated to do anything that my friend wants during the crossexamination. I'm putting something to the witness, if he disagrees with me, I can take him to the passages, but Mr. McGuire needs to stop. Because if he's going to continue doing this like he did before – I didn't interrupt him once during his examination in-chief and he was leading left right and centre. And I have to be....

THE COURT: Please don't yell at me.

MS. GADHIA: I'm just not yelling, I'm saying to Your Honour, please put a stop to this because this is unfair to the defence. He does not need to say, can you point out where it was said because I know what was said in front of the jury. It's improper.

THE COURT: I think it's appropriate though for you if you're going to refer the witness to what he said at the preliminary inquiry, to take him to it.

MS. GADHIA: Sure. Absolutely. If he disagrees with my suggestion then I will take him there. But if he agrees with my suggestion, I have no reason to constantly plug every single thing I put to him with a transcript. I don't have to do that. It's completely wrong to suggest that I'm obligated to put every suggestion to him and say, I'm going to take you to this passage and this is what I'm going to be suggesting. If he agrees, we're good to go.

THE COURT: Why wouldn't you take him to what he said at the preliminary inquiry and see whether that's what he said. Whether he agrees with what he said.

MS. GADHIA: I – all I said to him – the question was, it wasn't about the preliminary hearing.

THE COURT: Sorry, the police station statement.

MS. GADHIA: I said to him, you told the officers that you were quite intoxicated.

THE COURT: But why wouldn't you say, I'm going to read you the – like, you told the officer I was quite intoxicated, I'm reading from this page of this. So that....

MS. GADHIA: But why do I have to?

THE COURT: So, it's fair to the witness what he actually said.

MS. GADHIA: But he hasn't disagreed. If he disagrees and says I don't remember saying that, then I'm happy to take him to that passage.

THE COURT: I think it's fair to put to the witness what he said at the previous occasion.

MS. GADHIA: I disagree with Your Honour...

THE COURT: Well....

MS. GADHIA: ...and I'm not going to be putting a passage about, here you go, you said you were intoxicated....

THE COURT: Didn't we have a lengthy discussion and I gave you a handout as to how properly – in my view, how [indiscernible] this properly be done.

MS. GADHIA: I – whether Your Honour gives me a handout and is trying to give me law 101 on how to put a question to a witness...

THE COURT: Well....

MS. GADHIA: ...is not the point. Your point is...

THE COURT: No, the point is...

MS. GADHIA: ...is I am...

THE COURT: ...that you're going to do it properly.

MS. GADHIA: ...cross-examining – no, I am crossexamining a witness. This is a first-degree trial. I have a lot of latitude when I cross-examine. I can ask this witness you remember telling the officer that you were quite intoxicated that evening. If there's a suggestion out there that that was never said, I beg to differ, because it's all over this transcript. But if Your Honour thinks that the only way I can cross-examine him on a simple suggestion like that which he has not yet disagreed to, it's to say to him, I'm going to take you to this passage where you said you were intoxicated. And this passage where you said you were intoxicated. That's – we're going to be here for days.

THE COURT: Why....

MS. GADHIA: Days.

THE COURT: If there's multiple passages, why wouldn't you take him to the passage so that he....

MS. GADHIA: Because we will be here for days.

THE COURT: Well....

MS. GADHIA: I can take him to thousands of passages where he says, I was intoxicated. I was drunk. I was incapable of remembering.

THE COURT: Please stop yelling.

MS. GADHIA: I'm not yelling. I'm....

THE COURT: You are yelling...

MS. GADHIA: I'm not.

THE COURT: Ms. Gadhia. I'm telling you...

MS. GADHIA: I'm not yelling.

THE COURT: ...I'm listening to you and you're yelling at me.

MS. GADHIA: I'm saying to Your Honour...

THE COURT: Stop.

MS. GADHIA: ...I'm saying to Your Honour, I'm asking you to put a stop to this. T

HE COURT: Well, I'm not....

MS. GADHIA: I'm asking you to put a stop to this. This is not – this is completely wrong and I'm asking all of my friends are going to stand up and say exactly the same thing.

MR. TARANIUK: Yes, I concur with Ms. Gadhia what she – she said is absolutely correct, Your Honour. Mister – Mr. McGuire's interfering with the crossexamination. Ms. Gadhia composed the question the way she did, there's nothing wrong with this. This is cross-examination. It's the Crown that's at fault by interfering with the cross-examination

MR. ABBEY: Agreed, Your Honour.

MR. KIRICHENKO: Have to agree, Your Honour.

MR. MCGUIRE: So – so, I can make my submission. I – I thought that we had been through this. There's a difference between suggesting to the witness that he highly intoxicated that night and saying to the witness, and you told the police officers you were highly intoxicated. Those are two different things. First one, my friend can put suggestions to the witness and the witness can agree or disagree but when you tag it with a prior statement, I thought Your Honour had made a ruling in this regard and so Your Honour had provided us with a handout from Justice Corbett and you ruled that this is the way counsel were to do it. Taking that ruling from Your Honour, as these things work, you make a ruling, we have to abide by it whether we like it or not. I understood that, if indeed counsel was going to be referencing a prior transcript, whether it be at the preliminary hearing or a police statement that counsel were obliged to take the witness to it. Believing that Your Honour had made such a ruling, I made this objection.

THE COURT: Okay. I don't think it's appropriate for you to say – to editorialize...

MR. MCGUIRE: Fair enough.

THE COURT: ...if you want to object, I don't think you – I don't think it's – it's your place to say, I know what the witness said. I think that's inappropriate. In my view, if Ms. Gadhia is going to – anything, Ms. Gadhia, you want to suggest to the witness as far as whether he was drunk that night, what his evidence is, you don't have to take him to anything for that. You can make whatever suggestions you want. If you're going to take him to crossexamine him and suggest that he said something different at the – or – or said something to the police, I think you got to take him to the passage and ask him to confirm what he said to the police.

MR. MCGUIRE: So, I was still making my submission, thank Your Honour. That – and I – and I do – I – I agree with Your Honour. I ought not to have said I know what the witness says. I was going to a passage with respect to his alcohol consumption when counsel asked the question. So, I should not have done that. My apologies, Ms. Gadhia, and to the court. However, the aspect of my objection I think is well founded that if counsel are going to refer to the witness to prior testimony, or a prior statement, in accordance with Your Honour's ruling, counsel has to do that, and I'm not the one who made the rule or the ruling. Your Honour did.

THE COURT: I'm not the one who made the rule up.

MR. MCGUIRE: No, you made the ruling. And – and you told counsel how to do it and I expected we'd all follow that.

THE COURT: As to what?

MR. MCGUIRE: All right. I'm just wondering, just – I don't want to – I don't want to object. I really don't. I don't want to interfere with counsel's cross-examination. I'm assuming that Your Honour's ruling is that if counsel is going to take a witness to prior testimony, they have to be specific about the passage and put the passage to the witness. If that's done, I certainly won't object. But I will object if it's not being done, because I don't think it's in accord with Your Honour's ruling.

THE COURT: I don't think in accordance with the way – the proper way to put a prior – prior inconsistent statement to the witness.

MS. GADHIA: But it's not a prior inconsistent statement, Your Honour.

THE COURT: Or a prior statement.

MS. GADHIA: Any statement. I just said to him, you told the police that you were very drunk that night. You were intoxicated. There's nothing specific about me taking him to words that he spoke. If he agrees, yes, I did, then we move onto to the next question because it's clear he understands that he told police that. But if he disagrees, then I can go to them and say, I'm going to take you to the passages. That's when you take people to passages. It's not – I – I don't know where the sliver of – of this is the only way that you're allowed to cross-examine comes from. It's not. And I have done this type of crossexamination over and over again before hundreds of jurists and it's never been a problem. Because we all accept that if I have to take them to every single passage in making any suggestion to them because they made it in a statement or at a preliminary hearing, we would be here for days. I don't want to be here for days. I don't want to be the reason why we spent three days as Mr. McGuire tells the jury, oh, that's the fastest we've been able to get these witnesses done in five days – five witnesses in one day.

THE COURT: Oh, I think that was – that....

MS. GADHIA: It's not. The point is – the suggestion is and it's – it's going to be the suggestion, that it's defence counsel that are taking so much time. I'm trying to do this as expeditiously and efficiently as I can while maintaining my client's fair trial rights. This is a cross-examination on a first-degree murder. I am doing my crossexamination. I've been in it for less than 15 minutes and Mr. McGuire's doing exactly what he does whenever anyone of us gets up, which is he gets in there and interrupts and injects. It has to stop. And I'm asking Your Honour to please caution Mr. McGuire that he need not do this – allow – if there's something absolutely ridiculous that I'm doing, I understand it, but Your Honour wasn't objecting in that moment and it was Mr. McGuire who seems to say to the jury, oh, well - as I editorialize, oh, that's not what it says. So, he's just finished flagging to the entire jury that's not what it says. I now have no choice but to go there.

THE COURT: Well, I think on that passage that you probably do have to in light of what mister – I mean, I...

MS. GADHIA: That's the point...

THE COURT: Mister....

MS. GADHIA: ...is he's – he's creating circumstances that do not need to exist and if that's the case, I will – I mean, I'd rather the jury understand that he was wrong first, but that in order to circumvent his wrong editorialized comment that I'm going to go into and I'll tell the jury that. I'll come in and say that exactly that because of what Mr. McGuire just said, I'm now going to take you to every single passage to prove that Mr. McGuire's comment was improper.

MR. MCGUIRE: I mean, counsel's not going to do that, Your Honour. Starting – starting....

MS. GADHIA: Well, just [indiscernible].

MR. MCGUIRE: Sorry. You know, we need some rules here and – and for counsel to start – I – I apologized for that editorial but I was looking at a passage that wasn't what my friend said. The point is you can't....

THE COURT: What? That he said that – he said that he wasn't intoxicated to police?

MR. MCGUIRE: No, that he talked about how much he had to drink and – and in – in that passage and I have it marked. Now, I apologized, I won't do it...

MS. GADHIA: I'm sorry, what does that mean?

MR. MCGUIRE: ...but for counsel to get up and say she's going to start saying I was wrong to do this and that and the other thing when indeed Ms. Gadhia is transgressing Your Honour's prior ruling, this has to be dealt with before the jury comes in. Either counsel have to abide with Your Honour's ruling or not. And – and the ruling is as I understand it and the reason for the ruling is not just that it's prior inconsistent statement, Your Honour, it's that so Your Honour will know and I will know and we will know whether or not Ms. Gadhia is referring verbatim to what was said or the prior passage is being summarized. I haven't memorized the whole transcript, I'm trying to follow along. All counsel has to do is what I did when I was refreshing the witness' memory, say this page, this line, I'm going to ask you to refresh your memory on this point. It's not hard. All you do is say, I'm going to suggest to you, you told the officer and this is at page 39 for my friends, the following. I was really intoxicated that night if that's what it says. As opposed to not doing it, the witness thinking that Ms. Gadhia is quoting verbatim from the statement. He doesn't have the statement up there. Now, I don't understand why this is so difficult. And why I'm getting hit with all this, you know, vitriol about trying to enforce Your Honour's ruling. So it – it – either is before this jury comes in, you know, I think we have to know how it's going – has to be done going forward because I have to govern whether or not I make an objection. My preference is not to but I will do my job and I'm not going to be deterred by Ms. Gadhia saying things and getting all angry at me. It's not going to – it's not going to work. I'm not going to get bullied by Ms. Gadhia because she doesn't like the fact that I make objections when things aren't in accord with Your Honour's rules. Or your ruling.

THE COURT: All right. I'm going to think about it, I'll see you at two.

WOOLLCOMBE, J. (Orally): All right, in light of the issue before lunch, I have reflected on the submissions that were made. I am concerned about the defence having the ability to cross-examine as counsel see fit. I also want to ensure that the cross-examination is fair to the witnesses.

In my view, if the witness is being asked to agree that he had said something previously to police or at the preliminary inquiry, and the witness agrees with the suggestion that he previously said X or Y, that witness does not have to be taken to the specific passage in the transcript or the - of the statement or, or cross-examination or examination in-chief.

If the Crown does not think that what is being put to the witness is what the witness actually said or that there are other things that the witness also said that, that change the tenure or tone of what has been put to the witness, that is, obviously an appropriate area in which the Crown can cross-examine - or re-examine, excuse me. And I think that is preferable to object during the defence cross-examination.

If the witness does not know whether he said what is being put to him before or if the witness disagree that he said something before or is not sure, in my view, yes, he needs to be taken to the specific passage or passages in the appropriate transcript.

It is important that if there are references to what has been previously said, either to the police or at the preliminary inquiry, that there just be one point dealt with at a time rather than multiple points, so that it is fair and the witness understands exactly what aspect of the previous statement or evidence is being asked about.

The other thing, obviously, is - and if there are prior consistent statements that the witness is taken to, there will be appropriate instructions in the charge, and if there are prior inconsistent statements, there will be appropriate instructions in the charge.

THE COURT: So I'm going to have Ms. Gadhia now continue her cross-examination. Is that clear?

MR. MCGUIRE: Can I - just one aspect of clarification. Since I haven't memorized - like I mean this guy was up in the witness - in the witness stand at the preliminary hearing for a long time and I haven't memorized every - I mean there's an example of how this, this is fraught with danger when counsel suggested to the witness that he hadn't slept. And his - if you can go to page four of his November 23rd statement, you'll see that he says....

THE COURT: No, just a second. That was November 20....

MR. MCGUIRE: Twenty-third statement.

THE COURT: Yeah. Yeah. Page....

MR. MCGUIRE: Four. It says, "And then this morning I woke up from her place."

MS. GADHIA: Can you just go back a bit and read the actual full paragraph where it says, "And we stayed up with her for the night and she..."

MR. MCGUIRE: Okay.

MS. GADHIA: "...couldn't go to sleep."

MR. MCGUIRE: Right. "So we stayed awake throughout the whole night. And then this morning, I woke up from her place." Now, so that's ambiguous, you know. And, and that's the problem when you summarize, and you don't put the exact passage. It's not fair to the witness to know what he'd said. He might agree with Ms. Gadhia and say, yeah, no, you're right, we stayed up all night. Or he might....

MS. GADHIA: And he corrected me.

MR. MCGUIRE: Excuse me. And he may say, he may say no, I woke up and I'm saying I woke up. The problem is that I don't know, I haven't memorized all of this. So with Ms. Gadhia saying, you said X and Y to the police, without a page reference, how am I supposed to go through all of this and figure out whether or not Ms. Gadhia is putting it accurately?

THE COURT: Well, if the witness agrees that what he - that - I mean he, he knows whether he slept or not.

MR. MCGUIRE: But he doesn't know whether or not he said something to the police. He hasn't memorized this whole transcript. How is he - when a, when a lawyer says you said this to the police, didn't you, you know, he's assuming....

MS. GADHIA: [Indiscernible]

MR. MCGUIRE: Like I really don't want to be interrupted in my submissions, Ms. Gadhia.

MS. GADHIA: And I don't want to be misquoted.

MR. MCGUIRE: No, no, so don't...

MS. GADHIA: I didn't say that.

MR. MCGUIRE: ...interrupt my submissions.

MS. GADHIA: I didn't...

THE COURT: Okay, the two of you.

MS. GADHIA: ...say that.

THE COURT: Ms. Gadhia just let Mr. McGuire make his submissions and I'll hear from you afterwards.

MR. MCGUIRE: The problem is the witness doesn't know whether or not Ms. Gadhia is accurately reflecting the transcript.

THE COURT: Well, Ms. Gadhia, I am quite confident is doing everything that she can to accurately reflect what was said, and if you don't think that what she has, has - if you don't think she's fairly put it to the witness, you, and she would expect, that you would re-examine on that.

[166] Then the submissions by Defence counsel was that she was just asking the witness to confirm what the witness had previously said. Of course, Defence counsel’s submission to justify the question then offended the rule of evidence that a prior consistent statement is inadmissible (except in limited circumstances):

THE COURT: But I think you can cross-examine about when he was drunk.

MS. GADHIA: Absolutely I can.

THE COURT: But I'm not - of course you can, but, but cross-examining him on what he told the police and when it's consistent with - you, you - a prior consistent statement isn't admissible to suggest it because he told the police he was drunk, and he's told the jury here today he was drunk, he must've been drunk, right? You agree with me.

MS. GADHIA: I'm not trying to elicit a prior consistent statement. I'm trying to establish that Mr. Suri, in trying to evade questions about what happened that night, explains that he is drunk. It's up to the jury to decide whether or not his recall, his observations are accurate or otherwise and maybe the fact that he was drunk is true.

THE COURT: I, I agree with you. It's, it's...

MS. GADHIA: So....

THE COURT: ...whether or not you can elicit from him what he told the police when it's a prior consistent statement.

MS. GADHIA: The suggestion that he told the police is the very suggestion that I'm getting at. Is the fact that he's trying to tell the police something. He's trying to say to them, look, don't rely on me, I'm not a credible witness here. I was drunk most of the time. So that becomes relevant. It's not about it being a prior consistent statement, it's about what his motivation is to tell the police I'm drunk.

THE COURT: So you're not adducing it for the purpose of bolstering his credibility. You're adducing it for the purpose of explaining why he said what he said.

MS. GADHIA: Yes, and it may work the other way. It may be that the jury says, yeah, we think he's drunk. We think he was drunk that night. He's not a reliable witness. And that's how they can go with that. But that's their choice. I'm just trying to elicit the evidence that I think works with my version of the events and what I see throughout all the statements, and I am not here to make a roadmap for my friend with page numbers and line numbers to tell him exactly where I'm going with each one of my references. If he doesn't know the witness's evidence, if he doesn't know his case, that's not my concern. I get to cross-examine and he should catch up. And the fact that I even wrote out the other ones that Your Honour wanted for Roger Whitters, let's be clear, he knows the statement. He knows exactly what the position in the statement is. We all come to the table knowing what our cases, so I don't interrupt to say, I'm sorry, where did you get that inference? Where did you get that suggestion? There are a number of times that he cross-examined the witnesses, and I accept that my friend is putting things fairly to the witness. I'm never going to say in front of a jury, that's not what I have in my materials. That's not what I understand it to be. And I want an admonishment because we can't let the jury think at all that those last words spoken from Mr. McGuire's mouth to the jury, in the presence of the jury, is something that he's entitled to do and he should be admonished for that in front of the jury.

THE COURT: Okay.

MR. MCGUIRE: So can we just stay on point? First of all, counsel will never hear, you know, never have to fact-check me 'cause every time I cross-examine a witness, because I haven't yet, I always go and say what page reference I'm going to, and I take the witness through the passage, that's how I cross-examine. That's why I thought you had to. So but you'll never hear me.

THE COURT: I think if the witness, if the witness agrees that he said something in his evidence, and it's not contentious that he said it, that he, he gave - he gave a piece of evidence previously, and he agrees, I don't think he has to be taken to the - if he disagrees, or if he doesn't know or he doesn't remember or he disagrees with what's being suggested, then Ms. Gadhia has to take him to the passage.

MR. MCGUIRE: But my point, my point is this. How does this witness know if he said something in a particular way, in all of these hundreds of pages?

THE COURT: Well, my understanding is he's been given an opportunity to review his evidence. And if he doesn't know, I mean, I'm prepared to say to him, if a suggestion is put to you about something you said previously and you don't know, you can tell us that.

MR. MCGUIRE: Well, I think that's at least fair to the witness, because I honestly don't know how these witnesses can be cross-examined over, over days and remember the phraseology and whether or not everything - you'd have to be a memory expert to do that.

THE COURT: Well, you also have to assume that Ms. Gadhia is in good faith, putting the suggestions to the witness that are an accurate reflection of the transcript or the, or the statement.

MR. MCGUIRE: But we know in this case, in this very case, though, that things have been done like that, in that sort of loosey-goosey fashion, which have been inaccurate. We know that.

THE COURT: Well, if they're inaccurate, you can re-examine and you know whether - if she makes a suggestion that you think is fundamentally incorrect, you'll know where the passage or you'll have time to find it and re-examine on it.

MR. MCGUIRE: Right, after the witness has essentially been unintentionally misled into thinking he may have said something he didn't and then a day or two later we re-examine.

THE COURT: Well, it's up to him whether the witness - I mean the witness, I'm sure, has been told, if he doesn't know an answer, he should answer that he doesn't know.

MR. MCGUIRE: Right.

[167] As a result, at the end of this exchange, the trial judge agreed that Defence counsel could suggest to a witness what they had previously said in the statement. This passage demonstrates that the trial judge amended her ruling and permitted Defence counsel to suggest to the witness what he told the police (without using the exact wording) and the witness could agree or not agree.

[168] So, the Defence was successful and the Crown was not. I fail to see how this example demonstrates bias against Defence counsel.

[169] The trial judge also criticized the Crown for editorializing when making the objection. The trial judge told the Crown this was improper, the Crown agreed and apologized to the court and Defence counsel. Again, this does not demonstrate that the trial judge was biased against the Defence or in favour of the Crown.

[170] The Defence submits that the trial judge gave her no “benefit of doubt or professional latitude, and instead spends a great deal of time trying to curb counsel’s behaviour, without consideration of whether counsel’s cross-examination strategy may be correct, albeit different from Her Honours preference”. I reject this submission. There are rules of evidence which must be followed for a fair trial, which includes being fair to a witness or impeaching a witness in a proper way. It is not a question of “latitude” or “preference”.

[171] This example does not demonstrate bias or a reasonable apprehension of bias by the trial judge.

g) A Good Faith Basis to ask a question in cross-examination (March 5, 2020)

[172] This example was not included in the Defence factum but was made during submissions on this application.

[173] There is no dispute that when counsel makes a suggestion to a witness, there must be a good faith basis for the suggestion. Questions which lack this good faith basis tend to prejudice the opposing party since the jury might rely on the question (even if the jury is told only the question is evidence and the suggestion is rejected) and conclude there must be or might be some basis for asking the question. For example, “you beat your partner?” Even if the answer is no, it might leave the jury to question whether there is some truth to the question.

[174] Lack of a good faith to ask the question became an issue in this example. In this excerpt, Defence counsel was cross-examining Mr. Suri. Mr. Suri had previously given a statement to the police. Mr. Suri testified that he was told to stick to the statement:

Q. Right. And see the thing is, is that I'm going to say that you were told in the Meadowvale Town Community area to stick to your story by the police because that was - that's what you were supposed to say, stick to the script.

A. Yes.

[175] Initially, Mr. Suri said that the police officers did NOT tell him to “stick” to his statement. But eventually, Mr. Suri said that the police told him not to deviate from his statement.

[176] Later in the cross-examination of Mr. Suri, Defence counsel went to another area NOT in the statement when Defence counsel asked whether “someone” had told Mr. Suri about certain evidence that had come out. (page 110)

A. Not from the kitchen. I did not hear Heidrah say that he wanted to get him.

Q. Anybody tell you about this evidence that you were going to be questioned about?

A. No.

Q. No?

A. No. That's why I look so stupid.

Q. Anyone tell you that....

MR. MCGUIRE: Okay, I'm objecting, Your Honour. I'd like to make some submissions, please. There's no good faith basis for this question whatsoever. Sorry, I'd like to make some submissions in the absence of the jury. please.

THE COURT: All right. I'm going to ask the jury to step out.

...JURY RETIRES

THE COURT: Mr. Suri, I'm going to ask you to step out of the courtroom, please.

A. Yes, Your Honour.

...WITNESS EXITS THE COURTROOM

THE COURT: Mr. McGuire.

SUBMISSIONS BY MR. MCGUIRE:

I take it Your Honour's familiar with the Supreme Court of Canada decision in Michael Little. In that decision, the Supreme Court discusses the fact that counsel requires a good faith basis to put a question, and they can't put questions that have - I don't know what the word is - inflammatory effect, but the quote, as I understand it, is you can't float a, you know, an unfounded innuendo into the jury box by mere asking. My concern is this is - I don't know how many times counsel has put this and I haven't objected, this one deals with the hearsay motion that we've just had, because counsel is putting suggestions based on the ruling or the concession and ruling that Your Honour has made. The suggest...

THE COURT: That's the suggestion about he wanted to get that guy and not going home until he got that guy, which we all agreed was a permissible question.

MR. MCGUIRE: No, no. And I didn't object to the question because it's...

THE COURT: No, no, it was the - it was did anyone tell you about the evidence.

MR. MCGUIRE: It's the innuendo, the constant, continued innuendo that someone is - and that could include Mr. Maund and myself and the officer in charge, I guess, we're the only ones in this courtroom, is somehow telling this witness about this sort of evidence, and I object. It's contrary to what the Supreme Court of Canada says in Little and I'd ask Your Honour to stop it.

THE COURT: Ms. Gadhia, what's the - what's the proper basis for asking that question? Have you got some reason to think that someone told him about this?

SUBMISSIONS BY MS. GADHIA:

Yes, I do. I feel as if this witness has already testified to the fact that he's been pressured to kind of not delineate from the script, to stick to the script. And without my prompting him, he said it was a police - police officers who had made him feel like he couldn't deviate from the script. And we've had now a hearsay ruling from Your Honour with respect to words that were spoken at Roger's house.

THE COURT: Yes.

MS. GADHIA: And those points of conversation that Heidrah had to the group, Roger, as well as other people in the apartment, we've already established that Umang Suri knows that Heidrah was angry, knows that Heidrah was upset about what happened under the bridge, that conversation was definitely still going on. But his answer, so quick and so prompt to the, "Mo, I never heard that, I was in the kitchen" seems to be a direct result of officers perhaps indicating to him that you are not to say you overheard Heidrah say he was going to get this guy.

THE COURT: Okay. You think that it's - what - what possible basis do you have to allege that that answer, because it was given quickly, as some of his answers are, often he interrupts you before you can give - ask the question, is a direct result of officers indicating that he's not to say that? What possible good faith basis have you got for that?

MS. GADHIA: Possible good faith basis...

THE COURT: Yes.

MS. GADHIA: ... is him saying specifically that officers have spoken to him and have told him not to deviate from the script.

THE COURT: But this isn't in a script, right?

MS. GADHIA: It may not be in the script, but it's certainly an indication that officers are speaking to him. And officers are speaking to him about his evidence. And...

THE COURT: Well, you didn't ask him whether officers told him what to say in this court. You had suggested to him that he had been told to stick to the script in - at the preliminary inquiry perhaps, or in his second statement. But I actually think you're way out of line on this, Ms. Gadhia. I think it's entirely inappropriate [sic] The suggestion that's being made, if not expressly, is that the Crown or the officers have told him that - what he's going to be asked in the witness box and I - the fact that he said that he was told to stick to a script does not, in my view, give you a good faith basis upon which to make such a suggestion. I think it's highly inappropriate.

MS. GADHIA: So then the question of putting to him you heard Heidrah say that he wanted to get this guy is still a permissible question to ask.

THE COURT: Well, you asked that and no one objected. Of course it's permissible. It's the suggestion, when he doesn't give you the answer that you want, that he's been somehow woodshedded by the Crown or the officer to give a specific answer...

MS. GADHIA: You're yelling, Your Honour.

THE COURT: Well, I'm sorry, I'm upset. I'm very...

MS. GADHIA: I appreciate...

THE COURT: ... concerned about this.

MS. GADHIA: I appreciate you're upset...

THE COURT: This is a...

MS. GADHIA: ... but you're now yelling at me.

THE COURT: This is a very - Ms. Gadhia, this was a highly inappropriate inflammatory question designed...

MS. GADHIA: I think what was highly inflammatory was Mr. McGuire saying that I had no good faith basis to ask the question

MR. MCGUIRE: But that's the objection.

THE COURT: Well he's right, in my view. And you didn't have a good faith basis for it. I don't think...

MS. GADHIA: But that's one thing that needs to be ruled on, right?

THE COURT: I'm ruling on it right now. It's...

MS. GADHIA: Absolutely. But it's...

THE COURT: ... entirely...

MS. GADHIA: ... the words that are spoken by Mr. McGuire in front of the jury that become problematic.

THE COURT: Well, the suggestion that was made in front of the jury was problematic.

MS. GADHIA: And I will go back to asking about the words that were spoken by Heidrah in Roger's apartment and not suggest that he's been told by officers not to know about those comments.

THE COURT: Yeah. You are not, unless you have some basis to think that he was told by somebody, the Crown or the police, to give certain answers, which I haven't heard from you that you do, in relation to this issue...

MS. GADHIA: I – see, the problem is this, is that he came out of his own lips without me even prompting him before the lunch break to say specifically that the police officers have, in fact, told him not to delineate from the script.

THE COURT: But there isn't anything about this - he's never been asked about this before, so it wouldn't be a script that he could be delineate - deviating from.

MS. GADHIA: But it - does it not involve at that point exploring that issue to find out whether or not maybe in this particular circumstance, we've heard about officers telling you that you're to stick to the script. Is it possible that you've also been told not to answer questions or say that you know anything about the conversations that took place in Roger's house.

THE COURT: No.

MS. GADHIA: It's not permissible to explore?

THE COURT: I am not going to let you, on the basis of the evidence that's been adduced, which doesn’t deal with anything about him being asked to stick to any script in relation to Roger's, I'm not going to permit you to make the suggestion, less than veiled, that an officer or a Crown, and I think it was left very much floating that it could have been the Crown...

MS. GADHIA: I did not say that, I said...

THE COURT: You didn't say who it was...

MS. GADHIA: No.

THE COURT: ... but you said did anyone. You didn't say the police officers that - were you scripted about this. You never - you didn't ask that. You said did anyone tell you abut this evidence. And the suggestion was that he'd been effectively woodshedded by the prosecution. Wasn't that the suggestion you were making?

MS. GADHIA: The suggestion was is that for some reason, the one time Mr. Suri's able to answer something with what seems to be a force