Court File and Parties

COURT FILE NO.: CR-22-1297 DATE: 2024-08-27

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HIS MAJESTY THE KING – and – Liam Stinson Applicant

Counsel: Kaely Whillans / Alayna Jay, for the Crown Joseph S. Wilkinson / Liam K. Thompson, for the Applicant

HEARD: August 19, 2024

Decision on Application

CORNELL J.

Introduction

[1] Following a seven-week trial, a jury convicted the accused of three counts of first degree murder and a single count of arson causing bodily harm.

[2] The accused has brought an application asking me to recuse myself and to have another judge appointed under s. 669.2 of the Criminal Code to impose a sentence on the applicant. The applicant submits that given a certain development which took place following the conclusion of the trial, there is a reasonable apprehension of bias that would warrant such an order to be made.

[3] Following the submissions of counsel, I advised that the application was dismissed with reasons to follow. I now take the opportunity to provide those reasons.

Background

[4] These charges arose as a result of an arson that took place in a public housing project that consisted of row townhouses.

[5] The applicant’s former girlfriend had taken up residence as a place of refuge in one of the units that was also occupied by three other people. At approximately 4:50 a.m. on April 11, 2021, two Molotov cocktails were thrown into the unit. Three of the four occupants died. The applicant arranged for the Molotov cocktails to be created and used.

[6] The unit that was firebombed was totally destroyed. The two adjoining units were substantially damaged. According to one firefighter, but for the prompt attendance of the fire department, all units of that housing complex may have been lost.

[7] During the course of defence counsel’s address to the jury, he invited the jury to find the applicant guilty of manslaughter and guilty of arson causing bodily harm.

[8] The jury found the applicant guilty of three counts of first degree murder and one count of arson causing bodily harm.

[9] Following the decision of the jury, the matter was put into assignment court and dates for a sentence hearing were set for August 19, 2024, with a projected date of November 1, 2024, for the pronouncement of sentence.

[10] On May 6, 2024, the investigating officer sent an email addressed to me through my judicial assistant. In the email, the officer noted the lengthy history of the matter. He referenced some ten incidents of witness intimidation and how there was a sense of closure for the families of the deceased. He commented on my “professionalism, effort and patience” and wished me the best in my personal and professional endeavours.

[11] It is this email that forms the basis for the application. It is against this background that the matter is to be considered.

Issue

[12] Counsel for the applicant made it clear that there is no concern about actual bias that would arise in a reasonable member of the public.

[13] The issue then to be determined is whether there is a reasonable apprehension of bias.

Analysis

[14] After my judicial assistant received the email, she wrote to the officer advising him that she would provide the email to me. At the same time, she provided certain information expressing her view that it was her pleasure to assist me with the preparation of my jury charge and to hear the verdict rendered. Among other things, she went on to say, “personally, I literally felt prayers being answered that day in court!” She went on to thank the officer for all of his hard work and dedication to these cases.

[15] On May 16, 2024, not having received any response, the officer asked my judicial assistant whether I had received the email and wondered whether he should have waited until after sentencing to send it.

[16] Recognizing my ethical obligations, I instructed my judicial assistant to advise the officer that I was not able to respond to the email. Out of an abundance of caution, I forwarded a copy of the email to the Judicial Ethics Committee to seek their advice and counsel.

[17] The response from the Judicial Ethics Committee simply confirmed my understanding that no response was appropriate and that a copy of the email from the officer should be sent to all trial counsel. This was done on July 9, 2024.

[18] On behalf of the applicant, concerns were raised that new information about alleged witness tampering was put forward in the email which referenced ten such allegations. With the exception of one or two of these allegations, all of them were previously known to me as they had been discussed in open court. It is well-established in the law that trial judges have the ability to disabuse themselves of improper evidence or unfounded allegations. As there is no suggestion there is any actual bias, the question remains about how this would be viewed by a member of the public. It is my opinion that the addition of one or two additional allegations would not cause any member of the public any concern.

[19] The email referenced certain information about David Cheff, the only individual who managed to escape the fire. A concern was raised that some of this information constituted material that is the proper subject matter of a victim impact statement. The reality is that during the course of the trial, Mr. Cheff detailed the emotional and physical trauma that he suffered as a result of the events in question including being in a coma for eight days following the fire.

[20] Reference was made to some of the opinions and comments expressed by my judicial assistant. Such opinions and comments remain those of my judicial assistant.

[21] The applicant relied upon the decision in R. v. Bertucci (1984) , 11 C.C.C. (3d) 83 (S.K.C.A.). In that case, a member of the RCMP wrote to the trial judge after the trial making submissions on the subject of sentence and making a direct request. The trial judge declared a mistrial, a decision that was upheld upon appeal. That case can be distinguished from the case at hand in that there were no submissions on the question of sentence and no request for a particular outcome in the email in question.

[22] It has been established that as the trial judge, I am in the best position to determine what sentence is appropriate. This has been recognized by the Supreme Court of Canada where it stated in R. v. M. (C.A.) , [1996] 1 S.C.R. 500, at para. 91 :

This deferential standard of review [of appellate courts] has profound functional justifications. As Iacobucci J. explained in Shropshire , at para. 46 , where the sentencing judge has had the benefit of presiding over the trial of the offender, he or she will have had the comparative advantage of having seen and heard the witnesses to the crime.

Perhaps most importantly, the sentencing judge will normally preside near or within the community which has suffered the consequences of the offender's crime. As such, the sentencing judge will have a strong sense of the particular blend of sentencing goals that will be "just and appropriate" for the protection of that community. The determination of a just and appropriate sentence is a delicate art which attempts to balance carefully the societal goals of sentencing against the moral blameworthiness of the offender and the circumstances of the offence, while at all times taking into account the needs and current conditions of and in the community. The discretion of a sentencing judge should thus not be interfered with lightly.

[23] As the judge who presided over the trial, I heard from the witnesses about the trauma and devastation caused by the applicant’s actions and the toll that it took, not just on the families and friends of the three deceased, but also the impact on the sole survivor, the impact on the community as well as the impact upon the first responders who attended at the scene of the fire. If I were to recuse myself, all of this firsthand information would be effectively lost.

[24] It is also my view that the application is moot. The mandatory sentence for first degree murder is life imprisonment with no eligibility for parole for a period of 25 years. Any sentence that is imposed in connection with the arson causing bodily harm will be concurrent to the sentences for first degree murder. Although counsel for the applicant attempted to construct an argument that there may well be a difference in outcome depending upon the results of any appeal, counsel did concede that “the application is approaching moot but is not quite there.”

[25] It is also important that this issue not be viewed through a narrow lens. The totality of the proceedings must be taken into consideration. Some two weeks were spent on the Crown’s pre-trial applications to introduce ante-mortem statements and evidence relating to discreditable conduct. I ruled that approximately one-third of the evidence that the Crown wished to introduce was inadmissible. The record will reflect that each party received favourable rulings during the course of the trial. The fact remains that no reply was provided by me to the officer. I forwarded a copy of the email to the Judicial Ethics Committee to seek their advice and counsel which simply confirmed my understanding of how the matter should be dealt with.

[26] Even insofar as a member of the public is concerned, the apprehension must be reasonable. Suspicion is not enough. On the record before me, the matter does not even rise to the level of suspicion, let alone the threshold required. It is well-established that trial judges are presumed to be impartial. The onus rests upon the applicant to show that this presumption has been rebutted. In this case, that onus has not been satisfied.

[27] It is my opinion that a reasonable person who was fully aware of the information and circumstances at hand would conclude that there is no appearance of bias in this matter. Accordingly, the application is dismissed.

The Honourable Mr. Justice R. Dan Cornell

Released: August 27, 2024