Court File and Parties

COURT FILE NO: 21-RD16237 DATE: 2023/08/01 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING Applicant – and – Justin Chalifour Respondent

Counsel: Sonia Beauchamp for the Crown Karin Stein for the Respondent

HEARD: June 14, 2023

Ruling on Certiorari and Mandamus Application

Anne London-Weinstein J.

Endorsement

[1] The Respondent Justin Chalifour is facing a number of charges relating to allegations of domestic violence arising on April 22, 2021.

[2] The matter proceeded to trial before Crewe J., in the Ontario Court of Justice beginning on January 4, 2023. On January 10, 2023, Crewe J., declared a mistrial. New dates have been set for the trial in the Ontario Court of Justice, beginning with pretrial applications in September of 2023.

[3] The Applicant brings an Application for Certiorari and Mandamus arguing that the trial judge exceeded his jurisdiction in declaring a mistrial.

[4] The Respondent argues that Certiorari and Mandamus are not appropriate remedies in this case and further, that the trial judge’s comments give rise to a reasonable apprehension of bias which would make remitting the matter back before him inappropriate, given the appearance of unfairness.

[5] I need not decide whether Certiorari and Mandamus apply in this case, as I have found that the trial judge’s unfortunate and intemperate remarks give rise to an appearance of unfairness, such that the matter cannot be remanded before him again.

[6] The Trial Judge was of the view that s.276 of the Criminal Code applied to this proceeding. The Applicant and the Respondent were of a different view, which had been settled upon by both parties at a judicial pre-trial prior to the trial.

[7] Unfortunately, the Trial Judge made comments disparaging of counsel and the Respondent both during submissions regarding the applicability of a mistrial and during his decision with respect to the s.276 issue.

[8] The Trial Judge:

• Suggested defence counsel’s conduct rendered the trial unfair by unknowingly or negligently failing to make the necessary application to be able to play the “trump card” through the Applicant’s evidence;
• Stated he felt “sandbagged in this case in a very real way that I really resent, I will be honest with you” about whether the pretrial judge could determine whether a s.276 application was necessary (having made it clear that he placed the responsibility for this state of affairs at the feet of defence counsel);
• Declared that the only reason he was declaring a mistrial was because of the way the defence has skewed the evidence in this case;
• After having declared a mistrial and making comments regarding the defence skewing the evidence, the Trial Judge indicated “hopefully the next time this case goes to trial it will be done properly”;
• After declaring a mistrial, spoke directly to the Respondent and said: “ And I hope you do not think you have won anything today pal because you have not. ”
• At the close of submissions on the issue of the appropriateness of a mistrial, the Trial Judge stated “There is a charge before this Court of assault causing bodily harm. Consent is no defence for that, I do not know if you are aware of that, but you bloody well should be.” The Trial Judge made this unsolicited comment, having neither invited nor received any submissions on this issue.

[9] The appearance of judicial impartiality is critical to the maintenance of public confidence in the criminal justice system. The test to be applied in determining whether a reasonable apprehension of bias exists is as follows: What would an informed person, viewing the matter realistically and practically—and having thought the matter through—conclude? Would they believe the judge is more likely than not, whether consciously or unconsciously, to decide the case unfairly? See: Wewaykum Indian Band v. Canada, [2003] S.C.C. No. 45 at paras 57-59 & 74.

[10] Viewing the totality of the remarks of the Trial Judge, I am satisfied that the strong presumption of judicial impartiality has been rebutted in this case. An informed person, viewing the matter realistically and practically, and having thought the matter through, would conclude that the judge was unable to decide the case fairly based on the totality of his various remarks. The Trial Judge’s expressed hope that the Respondent not think he had won anything gives rise to a reasonable apprehension of bias. Further, the trial judge’s direct reference to the accused as “pal” is a demeaning comment. It gives rise to a reasonable apprehension of bias and undermines confidence in, and respect for, the administration of justice.

[11] Therefore, given that there is the appearance of a reasonable apprehension of bias in this case, I exercise my discretion and decline to remit the matter back to the Trial Judge for further consideration.

Anne London-Weinstein J. Released: August 1, 2023