R. v. Sway, 2021 ONSC 7349

COURT FILE NO.: CR-19-80

DATE: 2021/11/05

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

ALAN SWAY

Defendant

COUNSEL:

Malcolm (Mac) Lindsay, Q.C., for the Crown

Richard Stern, for the Defendant and his Counsel, Andrew Perrin

John Struthers, for the Intervenor, The Criminal Lawyers’ Association

HEARD: October 15, 2021

REASONS FOR DECISION ON RECUSAL MOTION

M.G. Ellies R.S.J.

INTRODUCTION

[1] Can a judge ever preside over a trial in which a former client is appearing as a party – a person directly affected by the judge’s decision? Yes, say both the Canadian Judicial Council and the Supreme Court of Canada.

[2] Can a judge ever preside over a trial in which a former client is appearing as a lawyer – a person not directly affected by the judge’s decision? No, says the intervenor, never. Even if the judge was only retained to act in a real estate transaction for the former client? No, says the intervenor, not even then.

[3] Surely, this cannot be right.

[4] Apparently, this is the first case to consider whether a judge can preside over a case involving a lawyer who was a former client and, if so, in what circumstances. Perhaps that is because no lawyer who was a former client of a judge has ever objected to the judge hearing his case on that basis. Perhaps it is because most judges would prefer to avoid such a case altogether, as would I.

[5] However, I do not have that luxury. Certain aspects of this case should be tried in person, in my opinion. I am the only sitting judge in my judicial centre and I cannot ask a judge from another centre to travel to try this case during the pandemic. Therefore, I must deal with these and the other questions dealt with below.

BACKGROUND

The Present Recusal Request

[6] Alan Sway is charged with a number of drug offences under the Controlled Drugs and Substances Act, S.C. 1996, c. 19. He is represented by Andrew Perrin, a lawyer practicing in North Bay, where I sit. Just prior to the hearing of a Charter application to exclude evidence in Mr. Sway’s case, Mr. Perrin requested that I recuse myself. The request was opposed by the Public Prosecution Service on behalf of the Crown. I declined to recuse myself without a formal motion being brought. The Criminal Lawyers’ Association sought and obtained leave to intervene in the motion.

[7] Mr. Perrin asks me to recuse myself because of two retainers I took as a lawyer prior to my appointment to this court on September 30, 2010. The first was a retainer to represent Mr. Perrin himself (the “Perrin retainer”). The only evidence on the motion relating to the Perrin retainer is that I acted for Mr. Perrin “in the Ontario Court of Justice in North Bay”. There is no evidence concerning the nature of my retainer and I do not propose to give any, with the exception of saying that I believe I acted for Mr. Perrin prior to his call to the bar.

[8] The second retainer is one I later took on behalf of the North Bay Police Service (the “NBPS”) after Mr. Perrin was called to the bar (the “NBPS retainer”). The evidence on the motion is that I acted “in a matter in which Mr. Perrin was a party adverse in interest, requiring Mr. Perrin to retain counsel”. As I will show, that is not correct. The reported decision in the case makes it clear that Mr. Perrin was not adverse in interest. Then, as now, he was a lawyer acting for someone else.

[9] The record on this motion and the reported decision reveal that I was retained by the NBPS to apply to quash subpoenas that Mr. Perrin had issued on behalf of several of his clients. Those subpoenas sought to compel the Chief of Police or his designate to attend at preliminary hearings and to bring various documents. While it is true that Mr. Perrin retained a Toronto lawyer, Paul Copeland, to act in the matter initially, the reported decision shows that Mr. Perrin was involved as a lawyer, and not as a party.

The 2011 Recusal Request

[10] This is the second time Mr. Perrin has asked me to recuse myself. The first request was made in 2011 in a case on Manitoulin Island, in which Mr. Perrin was acting for Fraser Montgomery. Mr. Montgomery had been charged with criminal negligence causing bodily harm relating to a motor vehicle accident. Fortunately, there is a transcript available showing what occurred in that case. The Montgomery court file is also available. All of the facts relating to that matter to which I will refer in these reasons come from those two sources.

[11] On the eve of trial in the Montgomery matter, Mr. Perrin wrote a letter to the court advising that he had just learned that I would be presiding and suggesting that I should not. The letter mentioned only the Perrin retainer, not the NBPS retainer.

[12] The transcript reveals that I then convened a conference call with counsel, during which Mr. Perrin asked for an opportunity to speak to me as former client to former counsel. The prosecutor, Philip Zylberberg, consented and I spoke alone on the phone with Mr. Perrin. During that portion of the call, Mr. Perrin also raised the NBPS retainer as a reason to recuse myself. Following the call, I obtained copies from my former law firm of the relevant correspondence that I had exchanged with Mr. Copeland and shared them with both Mr. Perrin and Mr. Zylberberg. Those letters were later sealed and placed in the court file.

[13] The transcript shows that only one of the letters was of significance. It was dated January 14. There is no information in the motion record regarding the year in which the letter was written. The letter itself indicates it was written in the year 2002. In that letter, I wrote to Mr. Copeland:

In the meanwhile, I’ve been advised by my client that Mr. Perrin has been tape recording various conversations. In my view, it would be a violation of Rule 6.03(4) of the Rules of Professional Conduct for him to record certain conversations without first informing the other person of the intention to do so. If you agree, perhaps you would be kind enough to convey my concerns to Mr. Perrin in this regard.

[14] On January 19, 2011, the day after I shared this and the other letters I had obtained with counsel, I called on them for submissions. Following those submissions, I recused myself from the case. I will return to the 2011 recusal later in these reasons.

The Intervening Years

[15] More than ten years have passed since then. In the meanwhile, Mr. Perrin has appeared in front of me numerous times and has never asked me to recuse myself. Yet, I find myself faced once again with that request, more than twenty years after acting for Mr. Perrin and almost twenty years after acting for the NBPS.

POSITIONS OF THE PARTIES AND THE INTERVENOR

Mr. Sway and Mr. Perrin

[16] On behalf of Mr. Sway and Mr. Perrin, Mr. Stern relies on well-settled law. He submits that, while the NBPS retainer by itself may not be sufficient to create a reasonable apprehension of bias, in combination with the Perrin retainer, it is enough to require me to recuse myself. He submits that a reasonable observer would conclude that, if I recused myself once, as I did in Montgomery, I should recuse myself again.

[17] Mr. Stern submits that the fact that there are presently no other judges available to hear Mr. Perrin’s matters is not relevant. In any event, he says, recusing myself in this case does not mean I can never hear another case in which Mr. Perrin and the NBPS are involved. He submits that Mr. Perrin can always seek his clients’ instructions to permit me to sit on a case notwithstanding the apprehension of bias.

The Criminal Lawyers’ Association

[18] On behalf of the intervenor, Mr. Struthers takes a different approach. He submits that this is not a reasonable apprehension of bias case at all. Instead, he says it is a case about “conflicts”. He maintains that, like a lawyer who encounters a former client appearing as a witness in a case, a judge who encounters a former client appearing as a lawyer has no choice but to withdraw from the case.

[19] Mr. Struthers submits that it matters not what the judge was once retained to do. What matters is the sanctity of the solicitor-client relationship. According to Mr. Struthers, former clients like Mr. Perrin would not be able to confide freely in their lawyer if they faced the prospect of one day appearing before him as counsel.

The Crown

[20] On behalf of the Crown, Mr. Lindsay submits that this is, indeed, a case about the apprehension of bias. He submits that a reasonable and informed observer would not be influenced by the fact that I recused myself in Montgomery. He submits that the facts in Montgomery were significantly different. Mr. Lindsay argues that the facts are important and that the record before me is short on facts.

[21] Mr. Lindsay submits that the passage of time since both the Perrin and the NBPS retainers is also important.

[22] Finally, Mr. Lindsay submits that the fact that there are no other judges available in North Bay to hear Mr. Perrin’s cases is an important fact weighing against recusal.

THE ISSUES

[23] These arguments give rise to two issues, which I propose to deal with in this order:

(1) Does the solicitor-client relationship prevent a judge from ever presiding over a case in which a former client is counsel?

(2) If not, is there a reasonable apprehension of bias in this case?

ANALYSIS

Does the solicitor-client relationship prevent a judge from ever presiding over a case in which a former client appears as counsel?

[24] The argument advanced on behalf of the intervenor is a novel one. Typically, the question of recusal is determined on the basis of bias. However, most cases do not turn on the existence of actual bias. Instead, like this one, they turn on the possibility of bias: Wewaykum Indian Band v. Canada, 2003 SCC 45, [2003] 2 S.C.R. 259, at para. 62. The test was set out in R. v. S. (R.D.), 1997 CanLII 324 (SCC), [1997] 3 S.C.R. 484, at paras. 109-111:

When it is alleged that a decision-maker is not impartial, the test that must be applied is whether the particular conduct gives rise to a reasonable apprehension of bias… It has long been held that actual bias need not be established. This is so because it is usually impossible to determine whether the decision-maker approached the matter with a truly biased state of mind.

The manner in which the test for bias should be applied was set out with great clarity by de Grandpré J. in his dissenting reasons in Committee for Justice & Liberty v. Canada (National Energy Board) (1976), 1976 CanLII 2 (SCC), [1978] 1 S.C.R. 369 (S.C.C.), at p. 394[:]

the apprehension of bias must be a reasonable one, held by reasonable and right-minded persons, applying themselves to the question and obtaining thereon the required information. ... [The] test is "what would an informed person, viewing the matter realistically and practically — and having thought the matter through — conclude."

This test has been adopted and applied for the past two decades. It contains a two-fold objective element: the person considering the alleged bias must be reasonable, and the apprehension of bias itself must also be reasonable in the circumstances of the case… Further the reasonable person must be an informed person, with knowledge of all the relevant circumstances, including "the traditions of integrity and impartiality that form a part of the background and apprised also of the fact that impartiality is one of the duties the judges swear to uphold"… [Certain citations omitted.]

[25] The intervenor submits that this test is unnecessary and inapplicable when it comes to former clients appearing as counsel before their former lawyer. Instead, it submits that there is a blanket prohibition against the former lawyer presiding as a judge in such a case. It submits that the judge is automatically disqualified and may only preside if the former client consents. The intervenor goes so far as to submit that the nature of the solicitor-client relationship is irrelevant. It matters not whether the lawyer was retained to represent the client in a simple real estate transaction, the judge is still automatically disqualified, according to the intervenor.

[26] I am not able to accept any of these submissions. In my view, they mischaracterize the issue, are based on a flawed premise, ignore the presumption of impartiality, fail to recognize accepted standards of judicial conduct, and are contrary to the law’s well-established policy against automatic disqualification.

[27] In the analysis that follows, I make no distinction between a former client appearing as a party and one appearing as a lawyer for a party. Instead, I make the assumption that the ethical and legal standards that apply to former clients apply regardless of the capacity in which they appear.

Mischaracterization of the Issue

[28] As I noted earlier, the intervenor submits that this is really a case about “conflicts”, which I interpret to mean conflicts of interest. I do not believe that is a proper characterization of the issue in this case.

[29] To explain why, I will return to the example used by the intervenor of the situation in which a lawyer must withdraw from a case because an opposing witness turns out to be a former client. The conflicts in that example are clear: the present client’s interests conflict with the former client’s interests because the lawyer may be in possession of information obtained within the context of the lawyer’s relationship with the former client that he could use to the advantage of the present client. Thus, the interests of the two clients conflict with one another.

[30] But what are the conflicting interests here? With whose interests do those of Mr. Perrin – my former client – conflict? There can only be two possible answers to that question, both of which lead to the same conclusion, in my view.

[31] The intervenor’s submission must be either that Mr. Perrin’s interests conflict with those of Mr. Sway or with those of the Crown. The submission must be that, because of the solicitor-client relationship I had with Mr. Perrin, I might either decide against Mr. Sway or in favour of the Crown. In either case, the submission is that I will not be impartial. That is the essence of an allegation of bias. For that reason, I believe the issue of recusal is governed by the existing law relating to bias, which I will expand upon below.

The Flawed Premise

[32] One of the premises underlying the intervenor’s position is that prejudicial information shared in the solicitor-client relationship will result in bias on the part of the former lawyer. This premise ignores both the lawyer’s duty and that of the judge he may later become.

[33] One of the reasons that clients should feel free to share even the most harmful information with their lawyer is because of the lawyer’s duty to advance every ethical defence on behalf of the client notwithstanding their knowledge of such potentially bias-inducing information. Lawyers swear an oath when they are called to the bar. As part of that oath, they undertake to strictly observe and uphold the ethical standards that govern their profession. Those ethical standards require the lawyer “to represent the client resolutely and honourably within the limits of the law”, regardless of the prejudicial nature of the information they obtain from or on behalf of the client: Law Society of Ontario, Rules of Professional Conduct, s. 5.1-1.

[34] Judges also swear an oath. Cory J. wrote about that oath in S. (R.D.), at paras. 116-117:

Often the most significant occasion in the career of a judge is the swearing of the oath of office. It is a moment of pride and joy coupled with a realization of the onerous responsibility that goes with the office. The taking of the oath is solemn and a defining moment etched forever in the memory of the judge. The oath requires a judge to render justice impartially...

Courts have rightly recognized that there is a presumption that judges will carry out their oath of office... [Citations omitted.]

[35] It is illogical, in my opinion, to accept that a lawyer will adhere to his oath even in the face of highly prejudicial information, as the intervenor appears to do, but to suggest that a judge should be disqualified automatically on the premise that the same information will later cause the former lawyer to breach his oath as a judge.

The Presumption of Impartiality

[36] There is a strong legal presumption that a judge will carry out his oath of office. This is sometimes referred to as the presumption of integrity: R. v. Richards, 2017 ONCA 424, 349 C.C.C. (3d) 284, at para. 43. In R. v. Bukin, 2021 ONSC 3347, at para. 47, Di Luca J. explained that the presumption of integrity “suggests that judges are capable of and indeed obliged to put aside any feelings towards counsel and decide cases based solely on their merits”.

[37] More frequently, this presumption is referred to as the presumption of impartiality: S. (R.D.), at para. 117. Because of the strong presumption of impartiality, the party seeking to remove a judge bears the onus. In Wewaykum, the court referred to the reasons of L’Heureux-Dubé J. and McLachlin J. in S. (R.D.), as follows, at para. 59:

… the presumption of impartiality carries considerable weight, and the law should not carelessly evoke the possibility of bias in a judge, whose authority depends upon that presumption. Thus, while the requirement of judicial impartiality is a stringent one, the burden is on the party arguing for disqualification to establish that the circumstances justify a finding that the judge must be disqualified.

[38] The intervenor’s submissions ignore the presumption of impartiality entirely. Indeed, they presume the opposite.

Accepted Judicial Standards

[39] The intervenor’s submissions not only run afoul of the presumption of impartiality, but they also run contrary to the ethical and legal standards which govern judicial conduct.

[40] The Canadian Judicial Council (the “CJC”) was created by Parliament to ensure the proper conduct of federally appointed judges, among other things. In its recent publication, Ethical Principles for Judges (Ottawa: Canadian Judicial Council, 2021), at p. 53, under the heading “Judge’s Former Legal Practice”, Commentary 5.C.7 deals specifically with relationships formed by the judge while in practice. It provides:

Judges should be sensitive to the existence of relationships which, to a reasonable and informed person, would give rise to reasonable apprehension of lack of impartiality. In particular, judges will face this issue in relation to cases involving former clients, members of the judge’s former law firm or lawyers from the government department or legal aid office in which the judge practiced before appointment. Each case is unique and the apprehension of bias should be assessed in light of all the circumstances.

The following general guidelines may be helpful:

(i) judges who were involved in private practice should not sit on any case in which the judge or, to their knowledge, the judge’s former firm was directly involved in any capacity before the judge was appointed to office;

(ii) judges who practised law in government service or legal aid should not sit on cases in which they had any involvement prior to their appointment;

(iii) judges should not sit on a matter in which the judge’s former law firm is involved until after a ‘cooling off period’, often established by local law or tradition, of between two and five years; and,

(iv) judges should not sit on a matter in which the judge’s former law firm is involved for at least as long as there continues to be a financial relationship between the judge and the law firm. [Emphasis added.]

[41] While this commentary does not explicitly state that a judge may preside over cases in which a former client is involved, it does so implicitly. Although specifically referring to former clients, the commentary does not suggest that a judge may never preside in a case in which they are involved. Indeed, the commentary only proports to prohibit a judge from presiding over a case in which he was formerly directly involved.

[42] The previous edition of Ethical Principles for Judges (Ottawa: Canadian Judicial Counsel, 1998) was more explicit in recognizing that judges may preside over cases in which their former clients are involved. In Commentary E.19, at pp. 47-48, the CJC wrote:

Judges will face the issue of whether they should hear cases involving former clients, members of the judge's former law firm or lawyers from the government department or legal aid office in which the judge practiced before appointment. There are three main factors to be considered. First, the judge should not deal with cases concerning which the judge actually has a conflict of interest, for example, as a result of having had confidential information concerning the matter prior to appointment. Second, circumstances must be avoided in which a reasonable, fair minded and informed person would have a reasoned suspicion that the judge is not impartial. Third, the judge should not withdraw unnecessarily as to do so adds to the burden of his or her colleagues and contributes to delay in the courts.

The following are some general guidelines which may be helpful:

(a) A judge who was in private practice should not sit on any case in which the judge or the judge's former firm was directly involved as either counsel of record or in any other capacity before the judge's appointment.

(b) Where the judge practiced for government or legal aid, guideline (a) cannot be applied strictly. One sensible approach is not to sit on cases commenced in the particular local office prior to the judge's appointment.

(c) With respect to the judge's former law partners, or associates and former clients, the traditional approach is to use a "cooling off period," often established by local tradition at 2, 3 or 5 years and in any event at least as long as there is any indebtedness between the firm and the judge and subject to guideline (a) above concerning former clients. [Emphasis added.]

[43] Based on the similarity in language between the present and the previous versions, I conclude that the Ethical Principles contemplate that a judge may preside over a case involving a former client as a party after an appropriate period of time has passed.

[44] This practice has also been recognized in the jurisprudence. In Committee for Justice & Liberty v. Canada (National Energy Board), 1976 CanLII 2 (SCC), [1978] 1 S.C.R. 369, at p. 388, Laskin C.J. wrote:

Lawyers who have been appointed to the Bench have been known to refrain from sitting on cases involving former clients, even where they have not had any part in the case, until a reasonable period of time has passed. A fortiori, they would not sit in any case in which they played any part at any stage of the case.

[45] Not only do the intervenor’s submissions fail to recognize these ethical and legal standards, but they also contradict the concerns that animate them. Most reasonable people asked to identify potential concerns about a former client appearing in a matter before his former lawyer would cite the possibility that the judge would be biased in favour of his former client, not against him.

The Policy Against Automatic Disqualification

[46] Even where a judge has been involved as a lawyer in a case, there is no automatic disqualification. This was the ruling in Wewaykum, in which the court held that Binnie J.’s involvement as Associate Deputy Minister of Justice in the dispute before the court did not disqualify him from hearing the case.

[47] In Wewaykum, the Supreme Court of Canada rejected the notion of an automatic disqualification based on the solicitor-client relationship. After considering the law in Britain, the court wrote, at para. 72:

Whatever the case in Britain, the idea of a rule of automatic disqualification takes a different shade in Canada, in light of our insistence that disqualification rest either on actual bias or on the reasonable apprehension of bias, both of which, as we have said, require a consideration of the judge’s state of mind, either as a matter of fact or as imagined by the reasonable person.

[48] The intervenor’s submissions are contrary to this well-established policy of Canadian law.

Conclusion on the Issue of Automatic Disqualification

[49] For these reasons – the flawed premise on which they are based, the reliance on a presumption of partiality, the failure to recognize accepted standards of judicial conduct, and the law’s policy against automatic disqualification – I am unable to accept the intervenor’s submissions. A judge is not automatically disqualified from presiding over a case in which a former client is appearing as counsel. He is disqualified only if there is an actual or apprehended bias.

[50] I turn now to the second issue and the submissions made on behalf of the moving parties, which are based on this well-settled principle of law.

Is there a reasonable apprehension of bias in this case?

[51] I have already set out the legal principles that govern when a judge is asked to recuse himself on the basis of apprehended bias. On behalf of the moving parties, Mr. Stern submits that the application of those principles requires that I recuse myself. I am unable to agree.

[52] I will address each of the two retainers separately before addressing Mr. Stern’s submission that, while neither may be enough by itself, their combined effect results in a reasonable apprehension of bias.

The Perrin Retainer

[53] In my view, the Perrin retainer is incapable of raising any apprehension of bias. I say this for four reasons.

Lack of Evidence

[54] The first reason relates to the evidence adduced in this motion. As the court pointed out in Wewaykum, the onus of proof is on the party alleging a reasonable apprehension of bias. As the court went on to say, the grounds advanced must be substantial and the inquiry is highly fact-specific: Wewaykum, at paras. 76-77.

[55] As counsel for the Crown points out, there is practically no evidence on this motion relating to the Perrin retainer beyond the evidence that I once represented Mr. Perrin in matters before the Ontario Court of Justice. The evidence does not even tell us whether those were family or criminal matters. It would not require Mr. Perrin to breach solicitor-client privilege to provide information about the nature of the matters with respect to which I was retained. However, there is no evidence about the nature of the retainer and, therefore, there is no evidence from which to infer that I would become biased by virtue of it.

[56] A reasonable and informed person could not apprehend bias on the basis of the record before me in this case relating to the Perrin retainer.

The Passage of Time

[57] The second reason relates to the passage of time. As Ethical Principles make clear, the passage of time matters. This was also made clear by the court in Wewaykum. At paras. 85-86, the court wrote:

To us, one significant factor stands out and must inform the perspective of the reasonable person assessing the impact of this involvement on Binnie J.’s impartiality in the appeals. That factor is the passage of time. Most arguments for disqualification rest on circumstances that are either contemporaneous to the decision-making, or that occurred within a short time prior to the decision-making.

In Locabail (U.K.)… the English Court of Appeal stated:

. . . every application must be decided on the facts and circumstances of the individual case. The greater the passage of time between the event relied on as showing a danger of bias and the case in which the objection is raised, the weaker (other things being equal) the objection will be. [Citations omitted.]

[58] In Wewaykum, it had been over 15 years since Binnie J. had been involved in the case: para. 88. It has been more than 20 years since I acted for Mr. Perrin.

The Appearances Mr. Perrin Has Made Before Me Since 2011

[59] The test for apprehension of bias contemplates a reasonable person, informed with knowledge of all of the relevant circumstances. I believe it is relevant that, in the 10 years or more since Mr. Perrin asked me to recuse myself in 2011, he has appeared before me numerous times as counsel without ever raising the issue of potential bias.

[60] In another effort to avoid giving missing evidence, I have conducted a search of the legal databases, which reveal that Mr. Perrin has appeared before me in the following cases:

R. v. Swaine, 2011 CarswellOnt 15311

R. v. D.P., 2013 ONSC 6232

R. v. C.A., 2020 ONSC 30

R. v. Desvreaux, 2020 ONSC 5492

Schmidt v. Schmidt, 2021 ONSC 5044

[61] As I mentioned earlier, I was asked during argument to speculate that Mr. Perrin obtained his clients’ instructions not to request that I recuse myself in these cases. I decline to do that. In my view, given the concession made by Mr. Perrin to which I will refer, it is safer to infer that he was of the view that no reasonable apprehension of bias was possible.

Mr. Perrin’s Concession

[62] The pretrial application to exclude evidence in this case was scheduled to be heard on May 31, 2021. On May 27, 2021, the trial coordinator received a letter from Mr. Perrin, advising that his client would be bringing a recusal motion, given that I was scheduled to hear the matter. At my request, a teleconference with counsel was convened on May 28, 2021. A transcript of Mr. Perrin’s appearance on that date was requested by one of the parties to this motion and I have been provided with a copy of it.

[63] The transcript shows that I began the conference by asking Mr. Perrin to tell me what the motion was about and what the argument would be. In response, he said, at p.2:

…you and I will recall we went through this in Manitoulin years ago and I think it’s agreed you having been my previous lawyer is not going to meet the threshold. I wouldn’t even make this claim.

[64] Based on this comment, I conclude that Mr. Perrin views the fact that I acted for him as being incapable of giving rise to a reasonable apprehension of bias.

Conclusion on the Perrin Retainer

[65] I agree with Mr. Perrin’s view. For the reasons expressed above, the fact that I acted for Mr. Perrin over 20 years ago is incapable of giving rise to a reasonable apprehension of bias. Based on Mr. Perrin’s further comments, set out below, I conclude that the real issue here is the NBPS retainer, to which I turn now.

The NBPS Retainer

[66] In his submissions on May 28, 2021, Mr. Perrin went on to say this:

But I’ve had 20 years to think about what went on when you were a lawyer, Sir and you know, as you know I had to retain Paul Copeland at a time when you were retained by the North Bay Police Service, and I should start by indicating that the entirety of this application is going to be about police officer credibility, and in fact your former clients’ credibility.

THE COURT: Which – which – which....

MR. PERRIN: Add to that, Sir you recall.

THE COURT: Sorry, Mr. Perrin. Which client? You mean all the police or there was one in particular?

MR. PERRIN: No, Sir. You took a retainer from the North Bay Police Service.

THE COURT: Yeah.

MR. PERRIN: To my detriment. In fact, I was a brand new lawyer and if I may I can be as candid as I need to be, I think you’d expect that. I felt like you took a retainer against me as a brand new lawyer with the view to running me into the ground, quite candidly, Sir. I say that respectfully. You were and are a respected lawyer and the letters that you wrote on behalf of your client I know I wouldn’t write unless there was some currency in there, and anything that you may or may not have heard from Berrigan [the Chief of Police at the time] or any of his ilk went untested because I never had an opportunity to respond. You know what you heard, but the fact [of] the matter is I’m sitting here, and I’m going to say this Your Honour to you, I know this isn’t a tea party we’re involved with, but I find it very uncomfortable to stand in front of you because I know what it takes to show respect to the bench, which of course you’re a member of, and then differentiate that somehow from what I perceive to be a very personal attack on me as a brand new lawyer.

[67] It saddens me to say that these comments make it obvious that Mr. Perrin perceives actual bias. But, with respect, his perception is not reasonable. Nor would it be reasonable for anyone else to fear it. I reach this conclusion for several of the same reasons that I have referred to in addressing the Perrin retainer, and a few others.

The Nature of the Retainer

[68] As with the Perrin retainer, there is very little evidence about the nature of the NBPS retainer. Once again, however, I have been saved by the Internet from having to give the missing evidence myself.

[69] A search of the legal databases reveals that Mr. Perrin and I appeared before a judge of the Superior Court on February 13, 2004. We are each listed as counsel in an application I brought on behalf of the NBPS to quash subpoenas directed to the Chief of Police or his designate that Mr. Perrin had issued on behalf of several clients: North Bay Police Service v. R., 2004 CarswellOnt 6184. The reported decision makes it clear that, by the time this matter got to court, Mr. Copeland was no longer acting. Instead, Mr. Perrin appeared. This demonstrates conclusively that Mr. Perrin was never “a party adverse in interest”, as alleged in the motion materials. He was involved only as counsel.

[70] There is nothing in the report of that case or the evidence in this case to support Mr. Perrin’s belief that I tried to run him “into the ground” on behalf of the NBPS. There is also nothing in the nature of the retainer that I took that would support this view. Motions to quash subpoenas are not unusual. These subpoenas were issued to the Chief of Police, rather than to an investigating officer. There was obvious merit to the motion. In light of that merit, it would not be reasonable to conclude that the motion was brought as part of an effort to run Mr. Perrin into the ground.

The 2011 Recusal

[71] Mr. Stern submitted that a reasonable person would conclude from the fact that I recused myself in 2011 that I should do so now. I disagree with that submission for two reasons.

[72] First, as I set out above, time matters where a recusal request is based on the fact that a judge’s former client is involved in proceedings pending before him. More than 10 years have passed since the January 2011 recusal request.

[73] More importantly, an informed observer would know that the 2011 request was not granted because of the possibility of an apprehension of bias, even back then. A review of the Montgomery file reveals that Mr. Zylberberg was brought into the matter because of an application brought by Mr. Perrin on behalf of the accused to stay the charges. The application was based on allegations that the Crown in Gore Bay had acted together with one of the police officers involved in the case to improperly obtain a suspension of the accused’s driver’s license. I was brought into the matter because the judge who scheduled to preside was asked to recuse himself by Mr. Perrin, once again on the basis of an apprehension of bias: transcript of the proceedings before Del Frate J., December 9, 2010, at p. 1.

[74] It was in these circumstances that Mr. Zylberberg submitted, at p. 6 of the transcript of the proceedings on January 19, 2011:

Your Honour, the application that’s been filed changes the complexion of this case enormously. It – from at least our perspective we see it as a – a direct challenge to the reputation of the administration of justice here on Manitoulin, a suggestion that the administration of justice has acted disreputably. From our perspective, and when we’re dealing with perceptions matter more than they would in ordinary cases and this is all unfortunate because part of filing materials that call your opponent’s integrity, professionalism and judgment into question is that they disrupt the proceedings totally and they make it into an issue, they take a lot of court time up talking about problems between lawyers as opposed to dealing with the real question, which is whether Mr. Montgomery is innocent or guilty of criminal negligence. And so there is a strong interest in having that issue resolved, if it’s resolved adversely to the Crown so be it, it’s done quickly, and if it’s done favourably then people can return to normal mode, which is inquiring into the innocence or guilt of the accused. So anything that adds time to the process is unfortunate. Looking at the material that – that I see, the correspondence between yourself, Mr. Perrin and Mr. Perrin’s lawyer, Mr. Copeland, I don’t think I could make argument against your recusing yourself, simply to ask you to do everything you can to have this matter resumed before if it’s going to be yourself, yourself, or another judge as soon as possible so as to end the chill on – on the real proceedings, this application is on.

[75] As a result of these submissions, I did recuse myself in the Montgomery matter, but not because I believed that there could be a reasonable apprehension of bias. In my oral reasons, I said, at p. 11:

In my respectful view the contents of the documents, including the paragraph that I earlier referred to [regarding tape recording], are not capable of giving rise to a reasonable apprehension of bias in most cases. However, the Crown, in my opinion is correct. This case is unique in that the accused has already challenged the integrity of the justice system. In those circumstances, and only for that reason, I find that the administration of justice would be better served if I recused myself and so with reluctance, I do so.

[76] In the factum filed on behalf of the moving parties, counsel submitted that the present case also involves a challenge to the integrity of the justice system. In my view, the situation in Montgomery was significantly different from the situation in this case.

[77] Montgomery involved an allegation that the Crown Attorney who was involved in the prosecution had improperly attempted to obtain information that the accused’s lawyer had refused to provide about the accused’s medical condition. The allegation was that, by having an investigating officer file a second report about the accident with the Ministry of Transportation, the Crown had hoped that the Ministry would suspend the accused’s driver’s license and the accused would have to provide the medical information the Crown sought to get it back: R. v. Montgomery, 2011 ONSC 3191, at para. 13. As a result of the acts of the Crown Attorney, the accused sought a stay of the proceedings.

[78] The present case involves an allegation that the police arrested the accused without having the necessary grounds and that the search subsequent to that arrest was unlawful. The remedy sought is exclusion of the evidence found during the search. The present application involves an allegation of investigatory misconduct. That is a common allegation in drug cases. The allegation in Montgomery, on the other hand, was one of prosecutorial misconduct. That is not a common allegation in a case of any kind. The two applications are not at all similar.

[79] As I stated at the beginning of these reasons, most judges would prefer not to have to deal with allegations that they may be perceived as being biased. This “if in doubt, get out” approach was recognized by the Supreme Court of Canada in Wewaykum. While ruling that the test is the same regardless of whether one is dealing with an allegation of potential bias before or after a decision has been made, the court wrote, at para. 78:

There is no doubt that the standard remains the same, whenever the issue of disqualification is raised. But hypotheses about how judges react where the issue of recusal is raised early cannot be severed from the abundance of caution that guides many, if not most, judges at this early stage. This caution yields results that may or may not be dictated by the detached application of the standard of reasonable apprehension of bias. In this respect, it may well be that judges have recused themselves in cases where it was, strictly speaking, not legally necessary to do so.

[80] The record in Montgomery shows that this is the approach I took in that case.

[81] As I also said at the beginning of these reasons, I do not have the luxury of recusing myself without cause this time around. There are no other judges sitting in my judicial centre at the moment. As the CJC stated in its 1998 version of Ethical Principles, a judge should not withdraw unnecessarily. Withdrawing unnecessarily in this case would cause significant difficulties. In that sense, I believe that the dearth of judicial resources is a relevant factor, contrary to the submission of Mr. Stern.

The Letter to Mr. Copeland

[82] As I said in Montgomery, I do not view the paragraph I wrote to Mr. Copeland in 2002 as being capable of creating a reasonable apprehension of bias.

[83] The language in the paragraph is not accusatory. It relays information and expresses a view, using language like “would be a violation”. Even that conclusion was expressed in conciliatory terms, namely “if you agree”. In my view, the comment was appropriate in light of the information it was based upon and was made in a professional, respectful way.

[84] Ten years have passed since I gave my reasons in Montgomery. Even if my view was questionable then, and I do not believe it was, enough time has passed since then to eliminate any possibility of an apprehension of bias arising from the comments I made in my letter to Mr. Copeland in January 2002.

Cases Since 2010 Involving Members of the NBPS

[85] Contrary to the submission made on behalf of the moving parties, I believe that an informed observer would find it relevant to know whether I have demonstrated any bias in favour of the NBPS since my appointment to the bench in 2010. This is not particularly difficult information to obtain. However, none of it has made its way into the record. Once again, the legal databases have come to my rescue.

[86] Not surprisingly, the databases show that I have heard many cases involving members of the NBPS. Some of them involved the very officers who were involved in the present case. In one reported decision (a drug case like this one), I acquitted the accused, in part because of inconsistencies in the evidence of two of these officers: see R. v. Robinson, 2018 ONSC 7264, at para. 29(2).

[87] Of course, the databases show cases going both ways, some in which accused individuals have been acquitted, some in which they have been convicted. The point is that, both in terms of the overall body of cases and in terms of each particular case, there is nothing to support an apprehension of bias in favour of the NBPS.

Mr. Perrin’s Personal Problems with the NBPS

[88] There is one more piece of information that I believe a reasonable, informed observer would find relevant in assessing the possibility of bias based on the NBPS retainer. This information came from Mr. Perrin himself during his submissions on May 28, 2021. On that date, while discussing the NBPS retainer, he said:

Add to that, Your Honour, you were acting for a client that every time I came to town, and I’m certain you knew this because I was pretty open about it, I was getting detained, I was getting – in fact, in front of your old offices. I had 11 police officers, your clients, pull me out of a Lexus one night for no apparent reasons because I went to get a hot dog. That’s just one example, there’s more.

[89] As I interpret Mr. Perrin’s comments, he was saying that I should recuse myself because I acted for a client that he believes was persecuting him. Unless there was some reason to believe that I was involved in that persecution, there is no basis to apprehend bias. With the exception of my comment about tape recording conversations, there is not a shred of evidence that I had anything to do with events occurring outside the scope of my retainer relating to the subpoenas. Mr. Perrin himself submitted that any information I had about such things came from him, because he was “pretty open about it”.

[90] Mr. Perrin’s request that I recuse myself because I acted for the NBPS amounts to a request that I recuse myself because I acted for a client with whom he had a conflict – a conflict in which there is no evidence I was involved. In my view, it would be entirely wrong for a judge to recuse himself on this basis.

Conclusion on the NBPS Retainer

[91] For the foregoing reasons, I conclude that the NPBS retainer is incapable of raising a reasonable apprehension of bias.

The Retainers Combined

[92] Mr. Stern submitted that, although neither the Perrin retainer nor the NBPS retainer may be sufficient alone to justify recusing myself, together they warrant such a result. I am unable to accept this submission.

[93] As I have demonstrated, neither retainer can give rise to a reasonable apprehension of bias. The retainers have no more merit when considered together than they do when considered separately.

CONCLUSION

[94] There is no reasonable basis to fear bias on my part against Mr. Perrin or in favour of the Crown.

[95] Therefore, the motion is dismissed.

[96] The charges against Mr. Sway will be addressed at the next assignment court for the purpose of setting a new date for the pre-trial application.

M.G. Ellies R.S.J.

Released: November 5, 2021

COURT FILE NO.: CR-19-80

DATE: 2021/11/05

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

ALAN SWAY

REASONS FOR DECISION ON RECUSAL MOTION

Ellies R.S.J.

Released: November 5, 2021