ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
ABUBAKAR YUSUF DADABHAI
Defendant
D. Spence, for the Crown
J. Greenspan, B. Greenshields, and Z. Kay, for the Defendant
HEARD: March 20, 2025
molloy j.:
REASONS FOR JUDGMENT
(Recusal Motion)
A. INTRODUCTION
1Abubakar Dadabhai was charged with having sexually assaulted his 12-year-old cousin (A.T.) in April 1991. She became pregnant and had an abortion on May 28, 1991. Although the Children’s Aid Society and police were notified, no charges were laid at that time. A.T. was sent off to India to attend a Muslim religious school and to live with relatives she had never met. She returned to Canada when she was 18. A.T.’s father died in October 2022. Following his death, A.T. reported to the police that she had been sexually assaulted by Mr. Dadabhai in 1991 and that nothing had been done about it. Mr. Dadabhai was charged in the fall of 2022 with having sexually assaulted A.T. between April 2 and 9, 1991. Approximately 31 years had elapsed from the date of the offence to the date when the charge was laid.
2Mr. Dadabhai elected to be tried by a judge sitting alone and the trial proceeded before me commencing on October 9, 2024. Some of the issues were dealt with by way of an Agreed Statement of Fact. I heard viva voce testimony from the complainant, her mother, and the accused. On October 15, 2024, I heard the submissions of counsel. The first issue raised by Ms. Greenspan (for the defence) in argument was the absence of crucial evidence. I immediately intervened and asked if this was a lost evidence application, as I had not received any notice of such. Ms. Greenspan replied that it was not, but rather that she was arguing that the absence of evidence or gaps in the evidence was relevant to whether there was a reasonable doubt. She repeated that position towards the end of her submissions. After the close of argument from both parties, I reserved my decision and adjourned the matter to December 4, 2024 at 9:30 a.m. for judgment.
3On Friday, November 15, 2024, Mr. Greenshields (also counsel for the defence) contacted the Criminal Trial Office by email, attaching a Notice of Application for a stay based on lost evidence and a Motion for Directions and requesting that the email be delivered to me as soon as possible. At my direction, the Criminal Trial Office sent an email to counsel stating that they could appear before me on December 4 at 9:30 a.m. to speak to the matter, but that I was involved in another matter that whole week and would not be able to hear it that day. I suggested alternate dates. By this time, I had already completed a full written decision (“my original decision”) which I would have issued on December 4, 2024, as planned.
4On December 4, as requested by the defence, I advised counsel that I would not have been acquitting Mr. Dadabhai. I adjourned the lost evidence application to be heard before me on February 3, 2025 and imposed deadlines for filing materials. Defence counsel requested that I provide them with a copy of my reasons without officially releasing them, which I declined to do.
5On February 3, 2025, the date set for argument of the lost evidence application, defence counsel sought a further adjournment to bring an additional motion for a mistrial based on evidence given by A.T. at a different criminal trial against three brothers of Mr. Dadabhai, which the defence alleged was different from her testimony before me. I acceded to that request and adjourned both motions to be heard before me on March 20, 2025. I also directed counsel to appear before me on February 13, 2025, to address a procedural issue with respect to my previously completed Reasons for Judgment.
6On February 13, 2025, with the express agreement of Mr. Greenshields, I filed my unsigned final Reasons for Judgment (which had been completed in November 2024) as a sealed exhibit at trial.
7On February 24, 2025, defence counsel sent a letter to the Criminal Trial Office, but addressed to me, stating that they would be bringing a recusal motion to disqualify me from proceeding on the basis of a reasonable apprehension of bias and seeking a “procedural direction” on the scheduling in light of the March 20, 2025, motion date previously set. No materials were included. In response, Crown counsel suggested that all three applications proceed on March 20.
8At my direction, the Trial Office sent an email to defence counsel and Crown counsel advising that all three applications should proceed on March 20 and that the order in which the applications would be heard would be dealt with on that date. Further, I offered the additional date of March 21 for the motions, but advised counsel that after March 21, I would be away until April 14. The Trial Office further advised counsel that I had asked that the defence materials be filed as soon as possible.
9Upon commencement of the proceedings on March 20, 2025, I started with the order in which the applications should be heard, and suggested that the recusal application should go first, with which all counsel agreed. I heard submissions from counsel on the recusal motion on the morning of March 20, 2025, and reserved my decision. I stated that I wanted to reflect on the matter that afternoon and adjourned to the next morning, March 21, 2025. It was agreed that if I had reached a decision on the recusal by the morning of March 21, 2025, and if that decision was to dismiss the motion, we would then proceed next with the mistrial motion relating to A.T.’s evidence in the other trial, and depending on that result and whether there was time, the third motion with respect to the lost evidence.
10On the morning of March 21, 2025, I advised the parties that I was dismissing the recusal motion and that written reasons would follow. I then heard argument on the application for a mistrial, which I also dismissed for reasons to follow. After that, I heard the lost evidence application. I reserved my decision on that application. I have also decided to dismiss the lost evidence application. My reasons on the lost evidence and mistrial applications will be delivered separately, as well as my final decision on the merits.1
11My detailed reasons on the recusal motion are set out below.
B. POSITION OF THE PARTIES
12The defence alleges that there are six separate events giving rise to a reasonable apprehension of bias and which, particularly when viewed cumulatively, are sufficiently serious that a reasonable person would have a reasonable apprehension that I was biased against the defence and would not decide the remaining two motions impartially. The defence therefore asserts that I should disqualify myself from hearing any further motions in this matter and also declare a mistrial. In the course of argument, Ms. Greenspan agreed that one of these points was in fact only provided for context and did not give rise to an apprehension of bias. The six issues raised are the following:
(i) The email sent by the trial office on November 18, 2024, constituted a step in the trial and violated the right of the accused to be present for his trial.
(ii) The ruling I made on December 4, 2024, that I would not be providing my unreleased reasons to counsel for use on their lost evidence motion, along with the comments I made for not releasing them, constituted an admission that I doubted my own capacity to be impartial if the reasons were released.
(iii) On the February 3, 2025 adjournment request so that the defence could bring a further motion based on A.T.’s evidence at the other trial, I asked questions of defence counsel and made statements that would cause a reasonable person to believe that I had “strayed from disinterested decision maker to a judge in my own cause.”
(iv) On the February 13, 2025 appearance, I “conscripted defence counsel into the Sophie’s choice presented to him on December 4, 2024”, allegedly by doing something contrary to what I had ruled on December 4, which defence counsel argued had been a determinative and irrevocable ruling.
(v) On February 13, 2025, I advised defence counsel that there had been an agreed statement of fact in the other trial with respect to Mr. Dadabhai having raped A.T.
(vi) The email sent by the Trial Office on February 24, 2025, constituted a decision by me that I had already decided the recusal motion and that the direction that the recusal motion be heard together with the other two motions was a jurisdictional error and a “bell that could not be unrung.”
13The position of the Crown is that the defence application is frivolous and wholly without merit and should be dismissed.
C. APPLICABLE LAW
14There is no material dispute as to the applicable law. The parties differ only as to how it applies in this case.
15Defence counsel does not allege that I am actually biased against the defence, but rather alleges that my conduct and words create the appearance that I am biased against the defence and that I would not decide the defence applications fairly. As noted by Epstein J.A. in Stuart Budd & Sons Ltd. v. IFS Vehicle Distributors ULC, “It is not normally possible to prove actual bias.”2 Not surprisingly, virtually all the case authority is directed to whether there is a reasonable apprehension of bias, as is alleged here.
16The test for a reasonable apprehension of bias was first articulated by the Supreme Court in 1976 in Committee for Justice and Liberty v. National Energy Board and consistently applied by the Supreme Court and other courts since, as follows:
[W]hat would an informed person, viewing the matter realistically and practically — and having thought the matter through — conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly.3
17As stated by the Supreme Court in the Yukon Francophone School Board case:
The objective of the test is to ensure not only the reality, but the appearance of a fair adjudicative process. The issue of bias is thus inextricably linked to the need for impartiality. In Valente, Le Dain J. connected the dots from an absence of bias to impartiality, concluding “[i]mpartiality refers to a state of mind or attitude of the tribunal in relation to the issues and the parties in a particular case” and “connotes absence of bias, actual or perceived”: p. 685. Impartiality and the absence of the bias have developed as both legal and ethical requirements. Judges are required — and expected — to approach every case with impartiality and an open mind: see S. (R.D.), at para. 49, per L’Heureux-Dubé and McLachlin JJ.4
18It is well-settled that the starting point in any analysis of this type is the strong presumption in favour of the integrity and impartiality of trial judges, who are bound by their judicial oaths and can be relied upon to carry out their duties in accordance with their legal responsibilities.5 It is, however, a rebuttable presumption. In Stuart Budd & Sons Ltd., The Court of Appeal for Ontario held:
The strong presumption of judicial impartiality is not easily displaced: Cojocaru v. British Columbia Women's Hospital and Health Centre, [2013] 2 S.C.R. 357, [2013] S.C.J. No. 30, 2013 SCC 30, at para. 22. A reasonable apprehension of bias requires a “real likelihood or probability of bias”: Arsenault-Cameron v. Prince Edward Island, 1999 CanLII 641 (SCC), [1999] 3 S.C.R. 851, at para. 2; R. v. S. (R.D.), 1997 CanLII 324 (SCC), [1997] 3 S.C.R. 484, per Cory J., at paras. 112-14. The test is an objective one, viewed from the perspective of an informed and reasonable observer: Chippewas of Mnjinkaning First Nation v. Ontario (Minister of Native Affairs), 2010 ONCA 47, 265 O.A.C. 247, at para. 230, leave to appeal refused, 33613 (July 18, 2020). It is a high burden.
Significantly, in assessing whether a judge’s presumption of impartiality has been displaced, his or her individual comments or conduct during the hearing of a matter should not be considered in isolation but within the context of the entire proceedings: S. (R.D.), per Cory J., at para. 134; Wewaykum Indian Band v. Canada, 2003 SCC 45, [2003] 2 S.C.R. 259, at para. 77.6
19Whether the presumption of impartiality is rebutted is to be assessed objectively from the perspective of a reasonable and informed person. The Supreme Court of Canada expanded on this “reasonable person” as follows in R. v. S. (R.D.):
The presence or absence of an apprehension of bias is evaluated through the eyes of the reasonable, informed, practical and realistic person who considers the matter in some detail (Committee for Justice and Liberty, supra.) The person postulated is not a “very sensitive or scrupulous” person, but rather a right-minded person familiar with the circumstances of the case.
It follows that one must consider the reasonable person’s knowledge and understanding of the judicial process and the nature of judging as well as of the community in which the alleged crime occurred.
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 and Liberty v. National Energy Board, 1976 CanLII 2 (SCC), [1978] 1 S.C.R. 369, at p. 394:
[T]he 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. See Bertram, supra, at pp. 54-55; Gushman, supra, at para. 31. 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”: R. v. Elrick, [1983] O.J. No. 515 (H.C.), at para. 14. See also Stark, supra, at para. 74; R. v. Lin, [1995] B.C.J. No. 982 (S.C.), at para. 34.7
20In Kelly v. Palazzo, the Ontario Court of Appeal held as follows:
I do not propose to repeat the bias analysis found in Peart, supra, at paras. 35-79. It does bear repeating, however, that there is a strong presumption in this country that judges are impartial. That presumption is not an artificial construct designed to shield judges from allegations of bias. The presumption reflects the historical and current reality. Judges in Canada are, as a rule, strongly independent and impartial: R. v. S. (R.D.), 1997 CanLII 324 (SCC), 118 C.C.C. (3d) 353 at p. 392 (S.C.C.); Peart v. Peel Regional Police Services Board, supra, at para. 39.
It takes much more than a demonstration of judicial impatience with counsel or even downright rudeness to dispel the strong presumption of impartiality. While litigants may not appreciate that presumption and thus may misread judicial conduct, lawyers are expected to appreciate that presumption and, where necessary, explain it to their clients. Baseless allegations of bias or of a reasonable apprehension of bias founded on a perceived slight or discourtesy that occurred during a trial, will not assist the client’s cause and do a disservice to the administration of justice. [Emphasis added.]8
21As I stated above, there is really no dispute between counsel as to these established legal principles. I agree that these authorities set out the test I am required to apply. The one point upon which I take issue with the law cited is defence counsel’s reliance on the decision of Pomerance J. (as she then was) in R. v. Mohamud. The defence factum quotes and relies upon the following excerpt from that decision:
In applying the test, there may be a distinction between the standard applied by trial judges, on the one hand, and appellate courts, on the other. When bias is raised on appeal, the analysis is retrospective. The trial has occurred and a verdict has been reached. The question is whether the integrity of the proceedings was tainted given the way the trial actually unfolded. When bias is raised before a trial judge, the analysis is prospective. The trial has not yet unfolded. The court is concerned with the potential for bias and the need to protect the integrity of future proceedings. To this extent, a trial judge may be justified in exercising an extra degree of caution, and in erring on the side of that caution, if a risk of bias has been demonstrated.9
22The defence cites this case as authority for their argument that the test I should apply at this stage involves an “extra degree of caution” and that I should err on the side of caution if there is a “risk” that there is a reasonable apprehension of bias. I agree entirely with Pomerance J.’s statement and application of the law in the case before her. However, I do not agree that this is the test I should apply at this stage. The issue before Pomerance J. was whether there was a reasonable apprehension of bias with respect to one juror who had an acquaintance with a person who was going to be a Crown witness in a second-degree murder trial. After only several days of evidence, it was learned that this juror had worked for seven years in the same department store as the witness, including on occasion in a supervisory capacity.
23In that context, Pomerance J. considered it prudent to discharge the juror in order to maintain the appearance of the integrity of the trial process. This was the context in which she noted that the test should be applied with considerably more caution than would be applied by an appellate court, which looks at the issue retrospectively. Discharging the juror at that point in the trial would mean that the trial would merely continue with 11 jurors instead of 12, which is always a possibility in every jury trial. Removing that juror therefore had very little impact on the course of the trial. Given that situation, the cautious thing to do was to discharge the juror. I agree with the observation of Pomerance J. elsewhere in her reasoning that the situation before her was similar to a consideration of whether there might be a conflict of interest for counsel to act for a particular accused. When that test is applied at the outset of a trial, an attitude of caution is taken to avoid any risk of conflict. However, when the issue is raised on appeal for the first time, the appellate court looks at the issue retrospectively to determine whether the accused’s interests were in fact compromised by counsel’s conflict of interest.10
24I recognize that when I am applying the test in the context before me, I must consider whether there would be a reasonable apprehension of bias with respect to my impartiality in going forward with the two defence applications before me. However, this is not something that has arisen at the outset of trial. The trial is essentially complete, but for these two new applications brought by the defence. In my view, the test I must apply is well-established in the case law and the decision in Mohamud does not alter that test in this situation.
D. FIRST GROUND: THE NOVEMBER 18, 2024 EMAIL
(i.) Context in which the Lost Evidence Issue Arose
25Although I did not know it until reviewing the materials filed on this recusal motion, there is a history to the defence’s lost evidence issue. However, I will start with what I knew from the trial itself.
26The evidence at trial with respect to the “missing evidence” was dealt with by way of an agreed statement of fact. I summarized that evidence in my unreleased reasons following the trial in the following manner (which I quote here for convenience):
In May 1991, the TPS opened a file in relation to the investigation of A.T.’s pregnancy. Standard police protocol required that an occurrence report be generated. However, if that was done at the time, the report can no longer be located. There were two investigating officers who had a legal and professional duty to take notes of their investigation. For one officer, no notes at all can be located. The other officer had notes of some things, but no notes of the content of any statements provided by A.T., any family members, or any family friends.
On May 15, 1991, the two investigating officers went to the North York CAS office and met with A.T., her father, an uncle, and Mr. Mullabhai. After a discussion with the adults, the two officers interviewed A.T. privately in the presence of Mr. Mullabhai. Although the interview was tape recorded, the recording was left with the CAS and the police never obtained a copy. The tape can no longer be located by CAS.
At the meeting on May 15, 1991, the police officers were informed that A.T. was scheduled to have an abortion. The abortion was performed at the Toronto General Hospital on May 28, 1991. The aborted fetus had a gestational age of approximately seven to eight weeks. The police did not seize or examine any tissues from the abortion, and did not make any effort to preserve any samples.
The TPS opened a new file in relation to this matter in November 2022. Thereafter they made inquiries about whether the hospital had retained any material that could be used for DNA testing. However, in the summer of 2022, the hospital destroyed any biological and diagnostic material it had retained prior to 2003.
27Closing arguments proceeded on October 15, 2024. Ms. Greenspan started her submissions by stating that the Crown had failed to discharge its onus of proof beyond a reasonable doubt for three main reasons, the first of which was the “significant gaps in the narrative of how the allegation was first made and of the 1991 investigation.” She then listed the following as what she referred to as crucial evidence that was missing: the evidence of A.T.’s father and her mother’s friend Mr. Mullabhai who were present when the complainant was interviewed but who have since died; A.T.’s lack of recollection of the investigation; and, the failure of the police to preserve her 1991 statement and the “potentially dispositive DNA evidence.”11
28I had not been given any notice with respect to a lost evidence application. I therefore immediately interrupted, asking, “Hang on a second. Is this a lost evidence application?” Ms. Greenspan responded as follows:
No. At this point, at this point, Your Honour, it’s not, but as Your Honour considers the totality of the evidence and the frailties that I will get into about that, I think that it is relevant for Your Honour to at least consider at this stage those missing pieces that don’t exist at this trial towards the burden of proof that the Crown has.12
29Ms. Greenspan reiterated this point towards the end of her submissions as follows:
As Your Honour is aware, and again, I’m not arguing obviously a lost evidence, but just it is important, I think, for the purposes as the court considers the gaps in the information that Your Honour is considering. The absence of important evidence in this case, but particularly in a historical case as this, is an important consideration in applying the principle of reasonable doubt to the Crown’s burden of proof.13
30This was the state of my knowledge as I considered and wrote my decision on the merits in this case, approaching the issue of the missing evidence or gaps in the evidence as issues relevant to whether I had a reasonable doubt. It is well-established in the case law that an absence of evidence is capable of giving rise to a reasonable doubt. However, in my analysis of the evidence in this case, as shown in my original decision, I did not have a reasonable doubt based on this.
31The reason I raised with Ms. Greenspan whether there was a lost evidence application is that I had not received any notice of one and I would have expected to have one if this was being argued. That does not preclude counsel from arguing that missing evidence constitutes a reasonable doubt. A formal notice of application would not be required to simply argue that the Crown had failed to prove its case beyond a reasonable doubt. However, in my view, in the absence of such an application, counsel would be precluded from arguing that there should be a stay of proceedings because of the lost or missing evidence. Accordingly, I was completely satisfied with Ms. Greenspan’s explanation that this issue related only to whether there was a reasonable doubt arising from the evidence or the lack of evidence.
32I was well aware, and assumed experienced counsel in this matter would also be aware, of the correct procedure for bringing such an application, as set out in the well-known decisions of the Supreme Court of Canada in R. v. La and the Ontario Court of Appeal in R. v. Bero.14 In particular, the established procedure is for counsel to bring the application prior to the commencement of the trial. It is then for the trial judge to decide when the application will be determined, but typically the argument will be heard at the close of the evidence so that the trial judge is in a better position to determine the impact on the case and on the accused’s ability to make full answer and defence.
33This is the procedure contemplated in La, in which the Supreme Court held:
The appropriateness of a stay of proceedings depends upon the effect of the conduct amounting to an abuse of process or other prejudice on the fairness of the trial. This is often best assessed in the context of the trial as it unfolds. Accordingly, the trial judge has a discretion as to whether to rule on the application for a stay immediately or after hearing some or all of the evidence. Unless it is clear that no other course of action will cure the prejudice that is occasioned by the conduct giving rise to the abuse, it will usually be preferable to reserve on the application. This will enable the judge to assess the degree of prejudice and as well to determine whether measures to minimize the prejudice have borne fruit. This is the procedure adopted by the Ontario Court of Appeal in the context of lost evidence cases. In R. v. B. (D.J.) (1993), 16 C.R.R. (2d) 381, the court said at p. 382:
The measurement of the extent of the prejudice in the circumstances of this case could not be done without hearing all the relevant evidence, the nature of which would make it clear whether the prejudice was real or minimal.
Similarly, in R. v. Andrew (S.) (1992), 60 O.A.C. 324, the court found at p. 325 that unless the Charter violation “is patent and clear, the preferable course for the court is to proceed with the trial and then assess the issue of the violation in the context of the evidence as it unfolded at trial”. See also: R. v. François (L.) (1993), 1993 CanLII 8582 (ON CA), 65 O.A.C. 306; R. v. Kenny (1991), 1991 CanLII 2738 (NL SC), 92 Nfld. & P.E.I.R. 318 (Nfld. S.C.T.D.).
I would add that even if the trial judge rules on the motion at an early stage of the trial and the motion is unsuccessful at that stage, it may be renewed if there is a material change of circumstances. See R. v. Adams, 1995 CanLII 56 (SCC), [1995] 4 S.C.R. 707, and R. v. Calder, 1996 CanLII 232 (SCC), [1996] 1 S.C.R. 660. This would be the case if, subsequent to the unsuccessful application, the accused is able to show a material change in the level of prejudice.15
34Likewise, in Bero, the Court of Appeal for Ontario held:
At the outset of trial, counsel for the appellant moved for a stay of proceedings. He submitted that the prosecution had allowed the vehicle to be destroyed before the defence had a reasonable opportunity to conduct a forensic examination of the interior of the vehicle. Counsel argued that such an examination may well have produced evidence that was relevant to the identification of the driver. He contended that the prosecution’s failure to maintain custody of the vehicle until the defence had an opportunity to examine and conduct forensic testing of it denied the appellant his constitutional right to make full answer and defence and caused sufficient prejudice to warrant a stay of proceedings.
Crown counsel at trial suggested that the appellant’s motion should not be determined until at least the end of the Crown’s case when the prejudice, if any, flowing to the defence from the failure to preserve the vehicle could be accurately evaluated. Defence counsel argued that the motion should be heard prior to the trial. The trial judge agreed and the motion proceeded. The trial judge dismissed the motion prior to hearing any evidence on the trial proper and gave reasons for doing so at the end of the Crown’s case.
The trial judge should not have ruled on the motion at the outset of the trial. This Court has repeatedly indicated that except where the appropriateness of a stay is manifest at the outset of proceedings, a trial judge should reserve on motions such as the motion brought in this case until after the evidence has been heard. The trial judge can more effectively assess issues such as the degree of prejudice caused to an accused by the destruction of evidence at the end of the trial: R. v. B.(D.J.) (1993), 16 C.R.R. (2d) 381 at 382 (Ont. C.A.); R. v. A.(S.) (1992), 60 O.A.C. 324 at 325 (C.A.). The approach favoured by this Court was approved in R. v. La (1997), 1997 CanLII 309 (SCC), 116 C.C.C. (3d) 97 at 107-108 (S.C.C.). In keeping with that approach, I will consider the appellant’s claim that a stay should have been granted in the light of the evidence which was adduced at the trial. [Emphasis added.]16
35Therefore, when I received the email requesting that I not proceed further with my deliberations and not release my decision in this case because the defence wished to bring a lost evidence application, I assumed that defence counsel had now determined that they should have brought a lost evidence application, that this had been an oversight on their part, and that they were now seeking leave to re-open the matter to argue the lost evidence point. Otherwise, the application would have been filed prior to the commencement of the trial.17 Sometimes, the fact that evidence has been lost is not known until it comes up during the course of the trial. However, I knew that was not the case here, as the circumstances of the lost evidence were the subject of an agreed statement of fact at the trial before me. In these circumstances, I also wondered if the lateness of the motion was because I had raised the issue with counsel during argument and they only considered after the fact that perhaps such an application should have been brought at the outset. Bearing this in mind, and in fairness to the defence, I agreed to hear counsel on this issue before releasing my already written decision.
36Unbeknownst to me, the lost evidence issue had been raised previously at judicial pretrials before my colleague Himel J. and on an adjournment motion heard by Bawden J. on October 3, 2024. It is therefore apparent that the failure to bring a lost evidence application was not an oversight by defence counsel, but rather a deliberate decision not to bring one. However, I did not know that at the time.
37Justice Himel conducted three judicial pretrials in this case: August 30, 2023; September 16, 2024; and September 20, 2024. The second pretrial followed close on the heels of a Crown application (brought two months before the October 9, 2024 trial date) seeking to introduce at trial the records of the Children’s Aid Society from its 1991 investigation as business records. The defence objected to that motion, and Himel J. directed that it be heard by the trial judge at the outset of trial. In her memo setting out what occurred at the September 16, 2024 pretrial, Himel J. wrote, “Defence counsel has advised that the defence is not bringing a s. 7 lost evidence application.” Himel J. also noted that the defence was considering whether to seek an adjournment of the trial and directed that any such adjournment request should be brought “immediately following our discussions on September 20, 2024.” No such application was brought immediately after the September 20, 2024 pretrial.
38On October 1, 2024, the Crown disclosed to the defence emails between the police and the Toronto General Hospital regarding the preservation of diagnostic materials related to the 1991 abortion procedure. This disclosure prompted the defence to bring an adjournment application, which was heard before Bawden J. on October 3, 2024. The defence contended that they needed to do research arising from the content of this email in relation to a lost evidence application. In his reasons for refusing the adjournment, Bawden J. referred to the possibility that the existence of hospital and police procedures in 1991 about preservation of such evidence “could be relevant to an application to stay the charges based on the loss of evidence.” However, he noted that there is a “very strong presumption” that such an application would be heard “at the completion of the trial when the full consequences of the loss can be assessed,” and referred specifically to the Supreme Court decision in R. v. La, to which I have also made reference above. I should note that at this point, the accused had elected to be tried before a jury.
39Subsequent to these pretrials and to the ruling by Bawden J., the Crown did not file an application to admit the CAS records as business records, the defence did not file a lost evidence application, and the parties entered into an agreed statement of fact about the lost/missing evidence, which was an exhibit at the trial before me. The trial commenced before me on October 9, 2024, and the accused re-elected to be tried by judge alone. At the conclusion of the trial on October 15, 2024, I adjourned to December 4, 2024, for delivery of my decision. There was no mention of a lost evidence application. Had I known one was coming, I would have imposed deadlines for the delivery of the material and a date for argument. I would not have started my deliberations, nor would I have started writing my reasons.
(ii.) The November 18, 2024 Email from the Trial Office
40On November 15, 2024, Mr. Greenshields sent an email to the Trial Office attaching a Notice of Application for a stay based on lost evidence and a Notice of Motion for Directions returnable on December 4, 2024 (the date upon which I was scheduled to release my reasons for judgment). In his covering email message, Mr. Greenshields wrote:
The defence is requesting that the attached documents be delivered directly to the trial judge, Molloy J., as soon as possible. Her Honour is in continuing deliberations as to verdict, and the material is time-sensitive.
41I first saw this email on November 18, 2024. By that time, I had already completed the final version of my reasons for judgment convicting Mr. Dadabhai of sexual assault, which I was planning to release to the parties and issue on December 4, 2024.
42In the Motion for Directions accompanying their email, the defence referred to the Ontario Court of Appeal decision in R. v. Sheng, 2010 ONCA 296 (“G.S.”), the basis on which they submitted the proper procedure was as follows:
i. Following the Court’s deliberations on the merits of the Crown’s case based on the trial record, for the Court to provide notice to the parties as to whether the accused is entitled to an acquittal;
ii. If the Court determines the accused is entitled to an acquittal, for the Court to enter an acquittal;
iii. If the Court determines the accused is not entitled to an acquittal, for the Court to suspend making a finding of guilt;
iv. For the Court to fix a schedule for the applicant to perfect his s. 7/24(1) Charter application to stay the proceedings based on lost evidence, and to schedule a date for the application to be heard.
43I strongly disagree that the appropriate procedure for a lost evidence application is to wait until the trial judge has completed his or her reasons before the application is brought. That is completely outside the established proper procedure. I also disagree with defence counsel’s interpretation of the procedure set out by Laskin J.A. in R. v. Sheng (“G.S.”). The G.S. decision is not authority for the proposition that a lost evidence application should be brought after the trial judge has reached a determination on the merits. Rather, G.S. establishes that the trial judge should not enter a finding of guilt prior to considering the lost evidence issue. In G.S., the trial judge first issued lengthy reasons finding the accused guilty of sexual assault without making any reference to lost evidence (relating to two prior CAS and police investigations with respect to the same allegations). A month later, the trial judge issued a decision staying the proceedings based on the lost evidence application. The Court of Appeal, understandably, was critical of that procedure. However, contrary to the assertion of defence counsel before me, Laskin J.A. did not direct that the proper procedure was for the trial judge to first advise defence counsel whether there would otherwise be an acquittal, and then proceed to hear the lost evidence application. Rather, in the judge’s own reasoning process, he or she should first consider whether the accused is entitled to an acquittal. If so, the acquittal verdict should be rendered, rather than the lesser remedy of a stay of proceedings. If an acquittal would not be the verdict at that stage, the trial judge would go on to consider the lost evidence application, which would already have been argued. For present purposes, suffice to say that the issue in G.S. arose in quite a different way and is distinguishable on its facts from the case before me. In this case, I had already completed my reasons, but had not released them. In that situation, counsel sought first to find out if I would be acquitting Mr. Dadabhai, in which case there would be no reason to proceed with a lost evidence application. For this reason, I agreed that the appropriate procedure would be to first advise the parties whether or not the application was even necessary. I was not going to acquit Mr. Dadabhai. Therefore, the application needed to proceed, and I considered it fair to advise the parties of that fact.
44I was scheduled to be sitting on a constitutional application for the entire week of December 2, 2024. I had scheduled the delivery of judgment in this case for 9:30 a.m. on December 4, so that it would not interfere with the other matter being heard. At my direction, the Trial Office sent an email to all counsel stating that I had advised as follows:
This matter is coming back before me for decision on December 4, 2024. I would have been ready to release my written decision on that date, but will now hold off in light of the stay of proceedings application. Counsel should be advised that I will not be acquitting the accused.
I cannot hear the stay application on Dec. 4 because I have a week-long motion that week, starting on Dec. 2.
Counsel should appear before me as scheduled on Dec. 4 to deal with timing issues and to set a date for the stay application.
I could possibly schedule it for the week of December 9 (except for Dec 11).
Failing that, it will have to be in January.
Molloy J.
45Defence counsel inaccurately state throughout their materials that this email was sent by me. It was not. It was sent by one of the Trial Coordinators at the Trial Office, although at my direction. Be that as it may, my purpose in letting counsel know ahead of time that there would not be an acquittal was so they would know when they appeared on December 4, 2024, that hearing dates would need to be set, and the dates upon which I would be available. I did not want further delay in this matter. I was proposing dates in December or January.
(iii.) The Email Is Not Evidence of Judicial Bias
46This email is the first of the chain of events alleged by the defence to give rise to a reasonable apprehension of bias.
47Although defence counsel took no objection to this email message at the time (or for months thereafter), on this recusal motion they argue that this communication constituted a violation of the accused’s right to be present at his trial pursuant to s. 650(1) of the Criminal Code. Ms. Greenspan took it a step further in her oral submissions suggesting that the email constituted a determination of the trial on its merits.
48First of all, this was clearly not a determination of the trial on its merits. The email specifically states that I would hold off delivering my decision on the merits, and I did so. The information about time to argue the application being required is simply a matter of scheduling. Defence counsel provided no case law supporting their argument that such a communication for purposes of scheduling constituted a breach of s. 650 of the Criminal Code.
49The defence cited one case in their factum (R. v. Barrow) and two others in argument (R. v. Poulos and R. v. Hassanzadah).18
50R. v. Barrow dealt with the right of an accused to be present during the jury selection process and the impropriety of the trial judge meeting in private with prospective jurors. The portion relied upon by the defence is at p. 707, in which the Court states:
Martin J.A. in Hertrich identified two important principles that underlie s. 577. First, the accused is present to hear the case he or she faces and is thereby able to put forward a defence. Second, the accused sees the entire process by which he or she is tried and is able to see that the correct procedure is followed and the trial fair. For Martin J.A., the second principle was the more important one. I agree with him that this second value is of enormous importance to the perceived fairness of the Canadian criminal justice system. The sight of a judge conferring in private with jurors on issues that go to the partiality of the trier of fact can only prompt cynicism in an accused. It should be avoided.
51Apart from the general and incontrovertible principle that an accused is entitled to be present for his trial, this case is of no assistance. I see nothing in the Barrow decision that approximates anything like the email at issue here. There is nothing secret. There is no interference with the accused’s right to put forward his defence.
52In Poulos, after the Crown had led evidence from two complainants in a judge-alone sexual assault case and closed its case, the trial judge asked to see counsel in his chambers in the absence of the accused, told counsel in private that the complainants had been “good witnesses,” and suggested a plea bargain. The accused did not change his not guilty plea, and was thereafter convicted of sexual assault. This in-chambers meeting in the absence of the accused was found to be a breach of s. 650(1) of the Criminal Code and a new trial was ordered. Nothing even remotely equivalent to that happened in this case. There was no private off-the-record meeting with counsel and no discussion of the merits of the case with counsel prior to a decision being made. An email was sent by the Trial Office to all counsel, advising them that a hearing date would be required because I would not be delivering a verdict of acquittal.
53In Hassanzada, the Ontario Court of Appeal dismissed an appeal from a jury verdict convicting the accused of second degree murder. I was the trial judge. At the end of the decision, Watt J. criticized my permitting counsel to make submissions on draft jury charges by email, (even though they were subsequently discussed in open court and marked as exhibits at trial), stating that this was a violation of the right of the accused to be present during the pre-charge conference. This observation was purely obiter, but nevertheless important as it is a directive from the Court of Appeal. However, I note that there was no finding that this compromised the trial nor that it would warrant a mistrial. The defence appeal from conviction was dismissed. I fail to see how this has any bearing on the issue now before me. This was not a pre-charge conference involving the right of the accused to make full answer and defence. The trial itself was already over, subject to whether I would hear the lost evidence application, which I was agreeing to do.
54I also note that immediately upon commencing court on December 4, 2024, I put on the record that Mr. Dadabhai would not, based on the evidence at trial, be entitled to an acquittal. Even if the email constituted a breach of s. 650, which in my view, it did not, I consider this to be corrective. Further, there was no prejudice whatsoever to Mr. Dadabhai.
55Finally, and significantly, I am hard-pressed to see how this could give rise to a reasonable apprehension of bias against the accused, nor is it even suggested in the defence material that it does. In my view, this argument is irrelevant to the recusal motion and is wholly without merit. In the interest of fairness to the accused, I determined to hear the application, even though in my view it was not brought by defence counsel in a timely manner. Since I had not yet released my original decision and was therefore not functus officio, I was prepared to disregard the procedural irregularity and hear the defence application. This was the very opposite of being biased against the defence. Further, I did not require an affidavit from the defence to explain their delay in bringing the application, particularly since the Crown did not object to the application being brought. I simply agreed to hear the application and set February 3, 2025, as the date for argument. That date was also an accommodation to the defence, who had no available dates in December or January. Agreeing to hear defence counsel on this issue was a concession to the defence, and if anything, could be seen as favouring the defence, as opposed to the Crown.
56I consider this ground to be wholly without merit.
E. SECOND GROUND: MY DECISION ON DECEMBER 4 NOT TO PROVIDE COUNSEL WITH MY ORIGINAL DECISION
(i.) Lack of Notice and Lack of Authority for the Release of the Current Version of the Decision
57At the appearance on December 4, 2024, defence counsel requested that they be provided with the reasons for judgment I had already written (but which I had not issued at their request). This was not a form of relief they had requested in their Notice of Application. Mr. Greenshields (for the defence) simply raised it in oral submissions. He cited no authority, and acknowledged that he knew of no authority. He did refer to the decision in G.S., but I pointed out that although the Court of Appeal held that the trial judge should not have made a finding of guilt prior to considering the lost evidence application, the Court said nothing about the trial judge providing counsel with his reasons up to that point.
58I advised Mr. Greenshields that I considered it inappropriate to provide counsel with the decision I otherwise would have issued that day, given that I would soon be hearing a further application about the lost evidence, which might affect the conclusion I had previously reached. Mr. Greenshields submitted that this would make it “more difficult” for the defence because they would have to make their argument “in the hypothetical, without knowing how the court went about its reasoning.”
59In the course of his brief submissions on this point, Mr. Greenshields stated that it was “not clear” whether the reasons of the trial judge in G.S. were available to counsel at the time of the argument of the application for a stay based on lost evidence. However, he pointed out that the Court of Appeal had the benefit of both decisions at the argument of the appeal.
60Obviously, the Court of Appeal would have had the benefit of both sets of reasons at the time of the appeal. It was an appeal from those reasons. However, the issue before me is not an appeal of my own ruling based on the evidence and submissions at trial prior to the defence bringing their application. There is no parallel.
61I disagree with Mr. Greenshields’ submission that it is “not clear” whether the decision of the trial judge in G.S. had been provided to counsel prior to the argument of the lost evidence application. In my view, it is clear it was not. There is nothing to suggest in G.S. that the lost evidence application was brought in anything other than the ordinary course; i.e., that it was argued at the close of the evidence and prior to any decision being rendered. The Court of Appeal was critical of the trial judge’s method of reasoning, stating that his decisions were “out of sequence.” However, it is apparent from the Court of Appeal decision that the trial judge heard the lost evidence application at the conclusion of the evidence at trial and prior to rendering his decision on the merits, finding the accused guilty of sexual assault. Subsequent to issuing that decision, the trial judge issued his decision on the lost evidence application staying the proceedings on the basis that the lost evidence compromised the fair trial rights of the accused. Laskin J.A. ruled that the trial judge proceeded correctly in his first two steps by: (1) “waiting until the end of the trial to assess whether the prejudicial impact of the evidence justified a stay” (citing La); and (2) addressing the merits of the case prior to deciding the stay application.19 Although not specifically stated, it is clear to me that the stay application in G.S. must have been filed before or during the trial, as the Court approved of the trial judge’s decision to refrain from ruling on it until after he had heard all of the evidence at trial. That statement only makes sense if the trial judge had heard the stay application at the end of the evidence.
62The Court of Appeal in G.S. also agreed that the trial judge should have addressed the merits of the case against the accused before ruling on the lost evidence application. Again, this is an indication that the lost evidence application had already been argued before the trial judge was considering his decision on the merits. Where the Court of Appeal was critical of the trial judge was in his failure to take the lost evidence issue into account as part of his decision on the merits. Laskin J.A. noted that if the trial judge was of the view that he was not satisfied that the case against the accused had been proven beyond a reasonable doubt, then the accused was entitled to an acquittal, not just a stay of proceedings. However, if the trial judge was not persuaded that the accused was entitled to an acquittal, he should then have considered whether a stay of proceedings would be appropriate. Laskin J.A. held:
However, once the trial judge determined that the respondent was not entitled to an acquittal, he should then have considered whether the lost evidence compromised the fairness of the trial. If he concluded that the lost evidence was so prejudicial to the accused’s defence that it warranted a stay, he should have stayed the proceedings, and not made any findings of guilt. If he concluded that the lost evidence warranted a lesser remedy, he should have given effect to that remedy before considering whether the accused was guilty. If he considered that the lost evidence should be factored into the assessment of the credibility and reliability of the complainants’ testimony, he should have performed that assessment in deciding whether the accused was guilty.20
63Laskin J.A. held that if the trial judge had followed the correct method of reasoning, he would not have made a finding of guilt. Rather, upon determining that the accused would not be entitled to an acquittal, the trial judge should then have proceeded to deal with his entitlement to a stay. In the result, if it was appropriate to grant a stay, the trial judge’s ruling should simply have been to grant a stay of proceedings. It was the finding of guilt that was the problem. I did not make a finding of guilt. I held that finding in abeyance until after the determination of the lost evidence application.
64Further, the Court of Appeal disagreed with the trial judge’s conclusion on the stay of proceedings ruling and held that a stay of proceedings was not appropriate, although a lesser remedy might have been. The question then was whether the Court should set aside the stay of proceedings order and restore the guilty verdict. In considering that issue, the Court of Appeal noted that there was no indication in the trial judge’s analysis of the merits that he had taken the lost evidence issue into account in determining the credibility and reliability of the evidence of the complainants. Laskin J.A. held that reinstating the guilty verdicts was not a fair or proper remedy for two reasons:
The first reason is that the lost evidence, though not sufficiently prejudicial to justify a stay, may have warranted a lesser remedy, or at least could have been factored into the assessment of the credibility and reliability of the complainants’ evidence. In an appropriate case, the lost evidence could give rise to a reasonable doubt about an accused’s guilt. The trial judge in this case considered the lost evidence so prejudicial that it warranted a stay, yet he never considered the impact of the lost evidence when he assessed the complainants’ testimony. As he stayed proceedings, one must assume that had he turned his mind to the matter he would have taken the lost evidence into account when deciding on the accused’s guilt. Yet, he does not mention the lost evidence in his reasons for conviction.
The second and main reason why I would not reinstate the guilty verdicts is that those guilty verdicts and the later stay are irreconcilable. The guilty verdicts assume guilt after a fair trial; the stay assumes that because the lost evidence was so prejudicial the respondent did not receive a fair trial. The two cannot stand together.21
65This was the context within which the Court of Appeal set out the proper procedure for the trial judge to have followed. The entire decision is about the trial judge’s reasoning process. At no time did the Court suggest that at some point in that process, the parties should be given the reasons the trial judge had written so far, or the benefit of his analysis at various stages.
66The implication of the decision in G.S. is that the determination that the accused would not otherwise be entitled to an acquittal is a preliminary step in the trial judge’s reasoning process before turning to the stay application based on lost evidence. It follows that as of December 4, 2024, I was at a preliminary stage of my reasoning process. At the request of the defence, I agreed to suspend that process and hear a further application from the defence dealing with lost evidence. There is nothing about that process that would give the defence any right to receive a copy of my preliminary considerations to that date. Had they brought their application in the normal course, they would never have been entitled to my existing work product. In my view, they cannot better their position by bringing their application out of time.
(ii.) My Statements About Remaining Impartial
67In the course of the brief appearance on December 4, 2024, I stated that I had raised the lost evidence issue myself during the defence argument at the close of the trial and that I had taken that issue into account in my reasons thus far. However, I further stated (in response to the defence request that I provide those reasons to him) that I should render one final decision at the end of the lost evidence application after considering everything, rather than delivering my reasons for convicting Mr. Dadabhai and then proceeding to hear the lost evidence application. In my view, that is consistent with the decision in G.S., although the issue arose in a different manner.
68I stated:
[A]nd then go away and what, issue a new decision that’s different from that one? I think I should not render a final decision until I’ve heard the whole thing.
I think that [providing my current reasons for conviction] would be taken as having, you know, a closed mind about the effect of the lost evidence. You’ve asked me to stop – because you want to come back and cast that argument in a different way. I think if I now issue a determinative decision based on the evidence I heard, it’s very difficult for me to go back and re-weigh it all a different way, based on your further material on the lost evidence.22
69There was certainly no obligation on the defence to agree with my ruling, but for what it is worth, Mr. Greenshields did so. During the excerpts of the first of my statements quoted above, Mr. Greenshields interjected, “Right,” “Right,” “Okay,” “Right,” and “Right.” He then made the following submission:
It’s certainly not our intention, obviously, to invite the court into any sort of error. In fact, that’s why we provided the case in the manner that we did. And I can completely appreciate the prudence of the court taking the approach that it has, in terms of being reticent to provide any reasons.
Maybe to be a little more specific, I’m anticipating part of the argument will relate to certain lines of cross-examination and how they were fettered by the unavailable evidence, and it may be that our concern is an imaginary one because it may be that the court actually dealt with the issues in a certain way that circumnavigated the concern that we’re raising. It’s difficult to know that without the benefit of the analysis...23
70The latter part of Mr. Greenshields’ submission was merely a reiteration of what he said earlier as a justification for requesting my reasons. I replied to this as follows:
I’m not going to do it. I think it’s wrong. I’ll hear from the Crown. He’s been nodding his head all the way through this. I think it’s wrong for me to deliver the reasons that I have at this point in time for reaching the conclusion that I have …and then, you know, hear another whole set of arguments about what to do about the lost evidence. I think that compromises my ability to be open-minded, to stay flexible, and to be sensitive to what you’re now saying about the lost evidence and whether it caused an unfair trial.24
71I then heard submissions from the Crown, who agreed that I should not provide the reasons I had at that point and that this was consistent with the decision in G.S. Mr. Greenshields then agreed it was appropriate to schedule dates and apologized for the fact that the defence was not available anytime during January 2025. Ultimately, we settled on February 3, 2025 for the argument of the application and I set aside a full day for the argument. Mr. Greenshields indicated that they did not expect to call any viva voce evidence.
72Although no further objection was raised at that time or at any time prior to the recusal motion, in its factum in support of the recusal motion, the defence presented their position on this issue as follows:
The trial judge found strongly that providing her reasons prior to the stay application would be wrong. Of her own motion, the trial judge raised her own capacity for impartiality in adjudicating the stay application. This created an impossible dilemma for the applicant as the accused before the court, and for the appearance of fairness. The trial judge herself had expressed a lack of confidence in her ability to be impartial. The trial judge was telling the applicant providing her reasons would compromise her. Accepting the court’s clear and unequivocal representation, the applicant was presented with a Sophie’s choice of the two pillars of natural justice: a compromised adjudicator (if reasons were provided) or a compromised legal argument (if reasons are withheld).25
73In support of this argument, the defence cited paragraph 23 of the decision of the Ontario Court of Appeal in Vento Motorcycles, Inc. v. Mexico, 2025 ONCA 82. This is not a criminal law case. It was an appeal to a judge of this court from a three-person arbitration decision involving a tariff dispute between an American motorcycle manufacturer (Vento) and the government of Mexico. Vento alleged that Mexico breached tariff agreements under NAFTA to the detriment of NAFTA. Vento’s claim went to arbitration before a three-member panel (“the Tribunal”), with both Vento and Mexico each nominating one of the arbitrators. All three members of the Tribunal provided declarations of their independence and impartiality. The Tribunal determined that there had been no breach of NAFTA. Subsequently, Vento learned that the Mexican nominee had been in communication with officials from Mexico during the arbitration, including an exchange of promises that he would be appointed to future arbitration panels under different trade agreements. Vento brought an application to set aside the Tribunal award on the basis of reasonable apprehension of bias. The application judge found there was a reasonable apprehension of bias, but that this did not justify setting aside the award. On appeal, the Court of Appeal for Ontario allowed the appeal, overruled the application judge, and set aside the Tribunal award.
74There is nothing about the law or facts in the Vento decision that strikes me as relevant to whether the defence was entitled to have my preliminary, unreleased reasons for decision. The defence relies in particular on paragraph 23 of the decision, which in my view must be read with paragraph 24, as follows:
The requirements of procedural fairness flow from the pillars of natural justice. The first pillar, audi alteram partem, requires decisionmakers to hear both sides before deciding a dispute. In essence, it requires that a fair hearing be provided before a decision is made. At its most basic level, a fair hearing requires notice of the decision that is to be made and an opportunity to make submissions to the decisionmaker. The second pillar, nemo iudex in sua causa, precludes a person from being judge in their own cause. In essence, it requires that a decisionmaker be impartial or unbiased – someone without an interest in or connection to the dispute, who will fairly consider the parties’ positions before deciding.
The two pillars of natural justice – compendiously described as “procedural fairness” in a wide range of judicial and administrative applications – are basic features of the common law, so important that their existence goes without saying.26
75Obviously, there can be no quarrel with these fundamental principles of procedural fairness in administrative law proceedings. It is unclear to me how these rules of procedural fairness have anything to do with the entitlement of the defence to have my work product, a set of reasons that they agreed, and indeed required, should not be issued. I am not aware of any case in which a trial judge has been required to provide preliminary reasons to counsel for their review so that they can then craft an argument they consider appropriate to counter those reasons. Counsel has not been able to refer me to a single case in which this was done, or even suggested. I conclude that this is because there is no such case. In the normal course, counsel routinely make arguments in lost evidence applications before the trial judge has delivered a decision on the merits. There is no case in which the trial judge has been required to provide counsel with their reasoning so far before counsel then proceeds with the lost evidence application. Indeed, the Court of Appeal in G.S. held it would be inappropriate to do so. This issue only arises in the case now before me because of the unorthodox manner in which the defence brought their application.
76The audi alteram partem principle relates to a party in a proceeding knowing the case he has to meet and having the right to be heard before a decision is made. That is dealt with in the criminal context by the Crown’s obligation of disclosure. It has nothing to do with the parties’ entitlement to what the trial judge is thinking about at various stages of the process. There is no issue of the defence’s right to be heard on the application. I had already agreed to hear their argument on the lost evidence application, notwithstanding the timing of when it was brought.
77I also do not understand the reference to the principle that a judge must not have an interest in or connection to the dispute, as the Mexican arbitrator did in Vento. I have no stake in this case, one way or the other.
78My references to the need for me to remain impartial and flexible in considering the new issues I expected would be raised in the new lost evidence application are merely observations of the importance of being impartial, notwithstanding that I had already formulated a conclusion on the basis of the evidence and arguments which I believed at that time constituted the whole of the matter I had to decide. It is more akin to a judge dealing with an application to admit new evidence in a trial that is finished, except that I did not require the parties in this case to meet any of those hurdles before I permitted the case to be reopened. It is correct to say that I was being cautious and cognizant of my duty to remain impartial notwithstanding my conclusion on the merits up to that point. However, at no time did I state that I could not remain impartial in determining the lost evidence application. If I thought that was the case, I would have simply said so, and issued my already completed decision.
79I take exception to the defence casting this as a “Sophie’s Choice” for defence counsel: choosing between a “compromised adjudicator” if I released my reasons and a “compromised legal argument” if the reasons were withheld. This was not a matter of defence counsel making any kind of choice about whether or not to have my reasons. They made their submissions and I made a ruling that I would not release the reasons I had drafted up to that point. In my view, this is nothing close to a “compromised legal argument.” When a lost evidence application is brought in the proper way, defence counsel never get to require an interim decision from the trial judge about his or her views of the evidence thus far before they make their argument seeking a stay based on lost evidence. As I previously stated, there is no reason the defence should have the advantage of a preliminary written set of reasons on the merits prior to arguing their motion, simply because they failed to bring their application in the normal course. The defence did not even alert me at the close of the evidence that such a motion was being contemplated. Had they done so, I would have imposed time limits and held off on preparing my reasons until I had heard the full argument.
80In her oral submissions, Ms. Greenspan acknowledged that the decision not to provide my reasons to counsel did not give rise to a reasonable apprehension of bias on its own, but that it gave context for what followed and was an “irrevocable step” in the proceeding, and a “bell that could not be unrung.”
81Again, in my view, there was nothing unfair about the defence not having my reasons prior to making their argument, as this is something they would never be entitled to in the normal course. Neither is there any merit to the allegation that I had declared myself to be incapable of remaining impartial. I simply did not. I find no merit to this ground for recusal. I also disagree that this was an “irrevocable step in the proceeding.” It was open to me at any time to change my position on this point. I was not functus. However, I never did change my position and never did provide my reasons to counsel during the course of the proceedings.
82This ground is wholly without merit.
F. THIRD GROUND: THE ADJOURNMENT REQUEST MADE ON FEBRUARY 3, 2025
(i.) What Happened on February 3, 2025
83I had set aside a full day on February 3, 2025, to hear argument on the lost evidence application. On January 28, 2025, I received from defence counsel a Notice of Application returnable on February 3, 2025, for an adjournment of the lost evidence application. The grounds for the requested adjournment were set out in an eleven-paragraph appendix. The defence asserted that the complainant had testified on January 6, 2025, in another criminal trial against other defendants and in the course of that evidence had made statements about this case that were inconsistent with her evidence before me at the trial in the fall of 2024. The defence asserted that they needed time to obtain the transcripts to enable them to bring a mistrial application based on these allegedly contradictory statements. No affidavit was provided.
84Needless to say, bringing an adjournment request with respect to an application on the very day the application was to be argued is not exactly timely. There was no accompanying affidavit or information as to when this “new” evidence became known to the defence, what steps they took, and why the adjournment request could not have been brought prior to the previously set February 3, 2025 date. In that context, I asked questions of Mr. Greenshields about these timing issues. I also advised Mr. Greenshields that based on the limited information in his materials, it did not seem to me that the complainant’s testimony at the January 2025 trial was any different from her evidence before me in October 2024.
85Mr. Spence, for the Crown, opposed the adjournment based on his assertion that the defence had not shown the recent evidence of the complainant to have been any different than her testimony at the trial before me. At times he referred to the transcripts from her October 2024 testimony, which both he and defence counsel already had. Mr. Spence pointed out that this was the third adjournment request by the defence and submitted that this third adjournment request at “the 13th stroke of the clock suggests that maybe something else is going on here.”
86Mr. Greenshields was quite adamant that the complainant’s evidence in January 2025 was fundamentally different with respect to what she did or did not recall about her interview with the CAS in 1991. Although my own recollection of what she said at the trial before me seemed to me to be the same, or at least, substantially the same, I acknowledged that I might have “misremembered” her evidence. In the result, I granted the adjournment so that the defence could obtain transcripts of the January 2025 evidence, and I scheduled both the mistrial application and the lost evidence application to be heard before me on March 20, 2025. This would now be over five months since the October 2024 trial had concluded.
87At the end of the argument on February 3, 2025, I again raised with counsel the issue of what to do with my already written reasons that would have been delivered on December 4, 2024. I suggested the possibility of having them filed as a sealed exhibit in the court file, so that there was a record of what my conclusions had been at that particular point in time, and whether the additional issues now raised affected that decision, looked at after the fact. I was looking for the assistance of counsel on the point and acknowledged that I had never been faced with this particular issue before. The discussion we had previously on December 4, 2024, was only with respect to there being a lost evidence application. However, now there would be two further applications: the lost evidence application which was contemplated in December, but also a mistrial application based on the complainant having given subsequent contradictory testimony. Mr. Greenshields agreed that the situation was novel and that defence counsel also were not aware of a similar situation. He requested an opportunity to consider the matter. I therefore put the matter over to February 13, 2025, to deal with this issue alone, while leaving the March 20 dates in place for the two pending applications.
(ii.) The Defence Position
88The defence asserts in their factum that an informed person would conclude that I had “strayed from disinterested decisionmaker into being a judge in their own cause.” The defence further asserts that I was being “interrogative” about the timing of when defence counsel had obtained and listened to the audio of the complainant’s January 2025 testimony and that an “informed observer” would perceive that the defence was being accused of improper conduct. In her oral submissions Ms. Greenspan described it as my “entering the fray as an advocate for the Crown and an advocate for my [original decision].” She was also critical of the fact that I had “publicly questioned” my previous decision about not releasing my original reasons for decision and “openly revisited” that ruling.
89First of all, as I have already said, there is no impediment to a judge making changes to a procedural ruling as a matter progresses. This general rule applies to my decision not to provide my reasons to the parties, and is even more applicable given that the initial ruling was made in the face of an oral request, with no prior notice to the court or the Crown, and with no authority cited. It was a novel situation. Further, the addition of another defence application might constitute a change in circumstances that should be considered. My raising with counsel once again what the appropriate procedure should be was merely an example of my trying to be careful and fair to all parties. There is absolutely nothing about this that makes me an “advocate” for the Crown, or an “advocate” for my prior decision. In my view, it would never cause a reasonable person to think such a thing. It does not give rise to a reasonable apprehension of bias.
90With respect to my questioning of defence counsel about the timing of when the defence knew there was an issue about the complainant’s evidence at the other trial, this information should have been in a sworn affidavit in support of their motion for an adjournment. They did not file an affidavit. In those circumstances, it was absolutely appropriate to question the timing to ensure this was not a frivolous motion, or a motion brought for the purpose of delay. I did not demand an affidavit. I was prepared to take the word of counsel. However, there was clearly nobody else I could ask, apart from defence counsel on the motion. A trial judge has a responsibility to ensure that court matters are dealt with in a timely manner. The trial judge is not required to sit back passively, acquiescing to every request for an adjournment counsel may seek. Rather, in fairness to all parties, the trial judge has a gatekeeping function to ensure that there is a reasonable basis for any delays or other relief sought. This includes scrutinizing the merits of motions brought, particularly at the eleventh hour, and dismissing summarily any such motions that are found to be frivolous or wholly without merit. As stated by the Ontario Court of Appeal in R. v. Nowack, “After Jordan, judges cannot passively sit back and let the Crown, or the accused – even if they are self-represented – ‘rag the puck’ and unnecessarily prolong criminal proceedings.”27 This is fully consistent with decisions of the Supreme Court of Canada dealing with unreasonable delays in court proceedings.28
91In their factum, the defence accuses the Crown of having made an “inaccurate submission” to me on February 3, 2025, that this was the third adjournment request by the defence and that the issue of delay should therefore be considered. This was not an “inaccurate submission.” This was the third adjournment request by the defence. The first request was made on October 3, 2024, when the trial was scheduled to start on October 7. That request was based on the defence’s contention that they needed more time to prepare a lost evidence application. Bawden J. dismissed that adjournment request. The trial before me concluded on October 15, 2024. Not only did the defence not file an application with respect to lost evidence, but Ms. Greenspan specifically told me they were not bringing one, arguing that the missing evidence gave rise to a reasonable doubt. Then, well over a month later, the defence delivered their second adjournment request, returnable on December 4, the very day upon which I was scheduled to render my decision. Again, that request was based on a stated intention to bring a lost evidence application. No affidavit was filed in support of that adjournment request and the lost evidence application material was also not filed. However, I agreed to the adjournment and scheduled the lost evidence application for February 3, 2025. Just a few days before that application was to be argued, the defence brought their third adjournment request, again returnable on the very day the other matter was to be argued, and again without any supporting affidavit. The Crown’s submission on this point was completely accurate. This was the third last-minute adjournment request. This situation required some scrutiny.
92The questions I asked of counsel were directed to the issues of timing and delay, as well as the merits of the application, to ensure there was an arguable basis for it. In my view, in all the circumstances, this was appropriate and reasonable. I did not accuse counsel of wrongdoing, nor did I even criticize counsel.
93Having received the information I sought, and hearing the submissions of the defence, I decided (over the objections of the Crown) to grant the adjournment and to hear the mistrial application. I am hard-pressed to see how this could ever be perceived as my being an advocate for the Crown. Once again, I was giving the defence a break. In my view, no reasonable person would see this as my being an advocate for the Crown.
94The test is not what an uninformed lay person might think, but rather what would a reasonable, informed, and objective observer conclude. An uninformed lay person who heard my exchange with defence counsel in court that day might conclude that I was giving him a hard time, even though I granted him the adjournment he sought. However, the reasonable and informed observer in this context would understand the gate-keeping role of the trial judge in this situation and the basis for questions about the merits of the application and whether it was brought in a timely manner. As the Court of Appeal for Ontario noted in Kelly v. Palazzo, counsel are expected to understand these legal concepts and to explain them to their clients.29
G. THE FOURTH GROUND: THE “SOPHIE’S CHOICE” GIVEN TO COUNSEL ON FEBRUARY 13, 2025
(i.) What Happened on February 13, 2025
95The February 13 date had been set to give the parties an opportunity to research the question of what to do with my original reasons for decision. At the appearance on February 3, 2025, I had raised the possibility of filing my reasons in the court file as a sealed lettered exhibit. In my own mind, I was considering that to mean that the parties would not have it, but I agree that some of my comments on February 3 could be taken as my still being open to releasing them to counsel. However, I clearly did not make any decision to that effect. I was asking for submissions.
96Mr. Greenshields appeared for the defence on February 13, 2025, and advised that in his review of the jurisprudence he had been unable to find a case that was on all fours with the particular circumstances before me. I advised that I also had asked a law clerk to look at the issue and she found nothing either.
97Mr. Greenshields then made the submission that in light of my ruling on December 4, 2024, and in particular my statement that releasing my reasons would “compromise [my] ability to be open-minded, stay flexible, and be sensitive to the arguments about whether Mr. Dadabhai had a fair trial,” the defence position was that I should not provide my reasons to them even though that would mean they would be at a handicap.
98In response, I stated, “My suggestion, however, was not to give them to you but to put them in a sealed exhibit.” Mr. Greenshields acknowledged I had raised that at the time and then stated:
And I agree that that can be done. Obviously, those reasons will need to form a part of the record by the time this court finishes its dealings with the matter.
99I then added that in my view, there would be no harm in the reasons being a sealed exhibit and that I thought this “more protects the defence than the Crown, given what you know about my conclusion so far.” Mr. Greenshields agreed with this suggestion, likening it somewhat to the situation that arose in R. v. Teskey, and stating that preserving my thought process in the manner described would be “beneficial.”
100I further explained my position as follows:
Well, that’s what I was thinking. It really is to protect the rights…of the defence on appeal. I think, given when it was raised and how it was raised, [at] the point when I had finished all of my thinking about the case, because I didn’t know there was going to be anything further, that I think to protect the record, it’s better that I – I agree you’re not entitled to it now…it’s not my final decision… But in terms of how this came up and to prevent any—or not prevent any suggestion, but to make clear what my thinking was thus far, I think it would be helpful to an appellate court to know what I was going to do before.30
101To this, Mr. Greenshields responded, “I agree. So, we…commend that.”
102I then provided my reasons for decision that would have been issued on December 4, 2024, to the Registrar to be placed in a sealed envelope in the court file and marked as Exhibit A to the trial proceedings.
(ii.) The Defence Position
103The defence now takes the position that this gives rise to a reasonable apprehension of bias that requires me to recuse myself from the entire proceeding.
104This is based on the “Sophie’s Choice” analogy and appears to be a duplication of the second ground for recusal in relation to my December 4, 2024 decision. The defence position is stated in their factum at para. 37 as follows:
When the applicant next returned before the trial judge on February 13, 2025, he submitted the trial judge’s December 4, 2024 statements against providing her reasons were determinative. Although proceeding without the reasons would “handicap” the applicant, counsel submitted that the overriding concern was preserving the fairness of the remaining litigation, as well as the appearance thereof. A reasonable observer would perceive counsel’s position as compromised. The applicant had now been conscripted into the Sophie’s choice presented to him on December 4, 2024. [Emphasis added.]
(iii.) Analysis: No Basis for Recusal
105This asserted fourth ground for recusal adds nothing to the equation. It is merely a rehash of the previous argument about statements I made on December 4, 2024, at the time I refused to provide the defence with the reasons I would otherwise have delivered that day. There was no “choice,” much less a choice between the lesser of two evils (which I gather is the thrust of the defence argument). They asked for my reasons. I held that they were not entitled to them. That position never changed, including on February 13, 2025. What happened on February 13, 2025, was that those reasons were filed as a sealed exhibit, which as I stated at the time, was to protect the position of the defence on appeal. I thought it would be useful for the appellate court to know what my decision would have been, but for the lost evidence and other applications, and to then see how, if at all, that position changed as a result of the new defence applications.
106In my opinion, I was not required to do any of that. I did not have to tell the parties in December that I had already written a decision. I could simply have said that they could proceed with their application. I could then have issued a decision after the fact that was the same or different from the first version and the parties would not have known what my earlier reasoning process was. They were no more entitled to those reasons than they would be entitled to prior drafts of final reasons any time a judge issues a final decision. It is a complete fallacy to say that the inability to have those reasons created a “handicap” for the defence. Counsel are never entitled to preliminary drafts of a judge’s reasons before embarking on a lost evidence application. It is simply not done.
107However, in the interests of transparency I did tell the parties that I had already reached a preliminary conclusion when they first sought to bring their lost evidence application (over a month after I had reserved my decision). The choice they had at that point was to have me issue those reasons as a final decision and raise their additional issues on appeal, or to proceed before me with the lost evidence application. That is not a “Sophie’s Choice” created by me, but rather by their own failure to bring their application in a timely way.
108Mr. Greenshields referred in argument on February 13, 2025, to the Supreme Court of Canada’s decision in R. v. Teskey, which he acknowledged was not on all fours with this case, but raised similar issues. 31 I agree. In that case, the trial judge reserved his decision after a five-day trial. Four months later, he convicted the accused on all counts, giving very cursory oral reasons and stating that written reasons would follow. Those reasons were not delivered for another 11 months, which was in the face of the accused’s pending appeal from conviction. The Supreme Court of Canada held that the late-delivered written reasons should not be received because a reasonable person could conclude that the reasons were not a true reflection of the basis of the verdicts but rather were “result-driven” in order to justify the decision made.
109This is not a perfect analogy, but similar concerns could arise if I did not preserve the original decision for review, particularly with respect to the consideration of the missing evidence as a factor possibly going to the existence of a reasonable doubt, and the credibility and reliability findings made with respect to the complainant. Preserving the original reasons makes it possible for the accused, his counsel, and any appellate court to see the original reasoning and whether my reasoning on the subsequent applications may or may not have been influenced by it. It allows for transparency.
110That is a completely different issue from whether the defence is entitled to see my initial reasons before I have concluded the trial and my consideration of all the issues, including these subsequent two motions.
111My intention was to be fair to the parties. I reject the submission that this created unfairness to the defence. In my view, a reasonable person would not believe I was biased or that I would not hear the remaining matters impartially.
H. FIFTH GROUND: MY REFERENCE TO THE AGREED STATEMENT OF FACT IN THE OTHER TRIAL
(i.) The Basis of the Defence Position
112At the end of the hearing on February 13, 2025, the following exchange occurred:
THE COURT: By the way, it was an Agreed Statement of Fact in the brother’s trial that there was a rape by Mr. Dadabhai in 1991. Did you know that?
B. GREENSHIELDS: That’s something that we’re investigating. I don’t have that evidence but I’m aware of that notion.
THE COURT: I know it was an exhibit, so I think it needs to be –
B. GREENSHIELDS: We’ve requested the exhibit.
THE COURT: Oh, okay. Just –
B. GREENSHIELDS: Thank you, Your Honour.
THE COURT: That’s why I was just giving you a head’s up that I know that that’s what happened. I don’t have it either. I just know it was an agreed fact. Okay. But your client wasn’t a party to that proceeding as I understand it?
B. GREENSHIELDS: He was not.32
113The backdrop to this exchange is what occurred on the adjournment motion before me on February 3, 2025. At that time, I asked counsel how anything said by the complainant about Mr. Dadabhai could possibly be relevant in the trial involving three other accused persons. Mr. Greenshields told me that it was in the context of a s. 276 application. Subsequently, I heard in passing that the fact of the rape by Mr. Dadabhai in 1991 had been an agreed fact in the January 2025 trial of three other accused involving the same complainant. This was surprising to me given that I had not yet rendered a decision on whether Mr. Dadabhai was or was not guilty of that offence. The existence of the agreed statement of fact was not mentioned by defence counsel in the motion before me earlier in February, and I wondered if the defence even knew about it. I therefore passed it along to Mr. Greenshields so that he could make the appropriate inquiries if he saw fit. As it turned out, he was already aware of it, so it did not matter.
114The defence refers to my knowledge of this “outside information” as being “stunning” to the defence and “fatal to the applicant’s right to a fair hearing.”
(ii.) Analysis: No Reasonable Apprehension of Bias
115First of all, the information was hardly “stunning,” as it was information already known to the defence. I am also hard-pressed to understand how it was “fatal to the applicant’s right to a fair hearing,” since it was information I acquired subsequent to having written my original decision finding the accused guilty. However, regardless of this, it clearly can have no impact on any decision I have to make in this matter. It is an agreed statement of fact in another trial with other parties and to which Mr. Dadabhai was not privy. What other people might think about Mr. Dadabhai’s guilt or innocence is completely irrelevant to any issue before me. It is not even something I need to disabuse myself of, because it is wholly irrelevant and not a statement by Mr. Dadabhai. Even if it was relevant (which it is not), trial judges hear opinions and relevant information all the time that they must nevertheless disregard when deciding a case. This includes evidence the trial judge finds to be inadmissible, even full confessions by an accused, if obtained in an improper manner. Notwithstanding this, it is presumed that the trial judge will put aside any such irrelevant information and decide the case based only on admissible evidence. We expect the same of juries if they are instructed by the trial judge to disregard evidence that they have heard.
116It was already clear that what the complainant said at the January 2025 trial about Mr. Dadabhai having raped her would be the subject of the defence’s mistrial application before me. In that context, I considered it relevant for the defence to know about the existence of an agreed statement of fact dealing with that issue. The defence had ordered the transcripts of the complainant’s evidence in that trial, but it was unclear whether that would include reference to an agreed statement of fact. The only purpose in my mentioning it was to be helpful to the defence, in case they did not already know about it. That is the opposite of being biased against the defence.
117In my view, this exchange is not capable of giving rise to a reasonable apprehension of bias.
118In any event, the defence not only obtained a copy of the agreed statement of fact, they filed in their Mistrial Application Record the entire nine-paragraph document. This is far more extensive than the information I had heard about, which is contained in just the first paragraph. The defence apparently considered it necessary for me to have the entire agreed statement of fact in order to decide the mistrial application. I find this to be at odds with their assertion that my merely hearing about one paragraph of it was “fatal” to my ability to conduct a fair hearing.
I. SIXTH GROUND: MY ALLEGED DIRECTION REGARDING THE RECUSAL APPLICATION
(i.) The Defence Position
119On February 24, 2025, defence counsel sent a letter addressed to me by email to the Criminal Trial Office. The letter referred to the two outstanding applications scheduled to be heard on March 20, 2025, and stated that the defence would be providing notice of an application to disqualify myself pursuant to the standard in Wewaykum Indian Band v. Canada, 2003 SCC 45, [2003] 2 S.C.R. 259 (i.e., for bias or the reasonable apprehension of bias). The letter further stated, “The defence is seeking procedural direction from the Court on the adjudication of this matter, having regard to the March 20th date, and the scheduling of the previously contemplated stay and mistrial applications.”
120This email was forwarded to me, along with the Crown’s responding letter stating that he had not received any material yet, but would be ready to argue all three applications on the March 20, 2025 return date.
121The defence submits that the procedural direction I then provided at their request reinforced the reasonable apprehension of bias by directing that all three applications would proceed together “without providing an opportunity for submissions from the applicant, and without any indication of what the applicant’s grounds were for the pending recusal application.” The defence factum states, “The trial judge’s February 24th email in response, directing that the recusal be adjudicated concurrently with the mistrial and stay applications, cannot be unrung in the circumstances of this case.”
(ii.) The Actual Content of My Procedural Direction
122First of all, although the defence refers to receiving an email from me, it was in fact sent by the Criminal Trial Office. More importantly, it does not direct that all three matters would proceed concurrently. It states:
Good morning.
Justice Molloy advises that all three applications will proceed on March 20, 2025. The order of applications will be sorted out in court on that date and will proceed with as many as possible. Her Honour has advised she can make herself available March 21 if required. After that, Her Honour is away until April 14.
Justice Molloy has advised that Defence should file their application materials asap. Please file with the Trial Office, Criminal Intake Office, and upload to Case Center.
Thank you,
Criminal Trial Office
[Emphasis added.]
(iii.) Analysis: There Is No Merit to Ground Six
123The March 20, 2025 date was the first one available to myself and all counsel when I adjourned the applications on February 3, 2025, at the request of the defence. This trial finished on October 15, 2024. After March 20, I would be away until mid-April. I was concerned about the amount of time that had already elapsed and cognizant of the need to avoid further delay.
124However, I did not direct that all three applications be heard together, as suggested by the defence. I directed that they would all be on the list for March 20, and that the order in which they would proceed would be dealt with on that day. It is trite law that allegations of judicial bias need to be dealt with by the trial judge before doing anything else in the proceeding. Even if my only direction had been that all three applications would proceed on March 20, I should be presumed to know that the recusal motion would have to go first. But there was no need to impute such knowledge of the law to me. The email to counsel specifies that I would determine the order of the applications in court on March 20. Although the defence now claims that I was determining the order without their submissions, the reverse is true. I directed that the order of the applications would be determined in court on March 20, 2025. Obviously, that would include the right of the parties to make submissions. In any event, with or without submissions, the recusal motion obviously had to go first.
125Upon the commencement of court on March 20, 2025, I ruled that I would deal first with the recusal motion and that, depending on the outcome of that motion, there would either be no further applications, or we would proceed with the other applications in whatever order counsel thought appropriate. I then proceeded to hear the submissions of counsel on the recusal motion.
126Notwithstanding the actual content of the February 24, 2025 procedural direction (which stated I would decide the order of the applications on March 20) and the fact that I did proceed with the recusal motion first, in oral argument Ms. Greenspan persisted in her submission that the February 24, 2025 email from the trial office constituted a further demonstration that I was biased against the defence. She maintained that my “retroactively deciding” to proceed with the recusal motion first does not “unring the bell.” She further submitted that having lost jurisdiction due to the reasonable apprehension of bias, I could not proceed to hear any further applications in this matter and as those applications were properly part of the trial itself, I must declare a mistrial with respect to the entire trial.
127The only authority cited in support of this proposition was R. v. Barber.33 In my view, this case adds nothing. The case involved two individuals (Barber and Lich) who were charged in the Ontario Court of Justice with various offences for their involvement with the “Freedom Convoy” protests in Ottawa. There were two motions before the trial judge: a motion from one accused to have her trial severed from that of the other accused; and a motion arising from alleged problems with disclosure that would require the trial judge to make factual findings with respect to the credibility of a senior Crown Attorney. On the latter motion, one of the accused and the Crown took the position that there could be a reasonable apprehension of bias given that both the Crown and the trial judge were in Ottawa and that an out-of-town judge should be brought in to hear the matter. An issue arose as to whether the trial judge could here the severance motion before dealing with the bias motion. Justice Smith of the Superior Court of Justice held that the trial judge was required to deal with the bias motion before proceeding with the other applications. Apart from that general proposition, which in my view is an obvious one, the Barber decision has no application here.
128I did not ever suggest that I would proceed to hear other matters in the face of the recusal motion. I did not ever decide that I would proceed with the other matters first. And I heard the recusal application first. There was nothing “retroactive” about that decision. No “bell” had been rung, except in the minds of defence counsel. A reasonable observer could not possibly infer that the email from the trial office constituted an irrevocable decision to hear other matters prior to the recusal application, without hearing from counsel. Further, no reasonable observer could possibly conclude from that email that I was biased against the defence. This ground of objection is wholly without merit, in fact or in law.
J. CONCLUSIONS
129It is useful to return to the underlying legal principles. There is a strong presumption of judicial integrity and impartiality that is not easily rebutted. Comments or conduct by the trial judge can give rise to a reasonable apprehension of bias, even where actual bias is not demonstrated. However, reasonable apprehension of bias requires a “real likelihood or probability of bias” and must be determined from the perspective of an “informed and reasonable” observer.
130Sometimes, instances of comments or conduct by the trial judge that might not individually give rise to a reasonable apprehension of bias can, when viewed cumulatively, meet that test.
131I have found that none of the individual incidents raised by the defence are capable of giving rise to a reasonable apprehension of bias. It is nevertheless important to step back and consider whether, when viewed cumulatively, a reasonable and informed observer would likely conclude that I would not be impartial in deciding this case. Six grounds were raised, all of which arose subsequent to the conclusion of the trial itself. There is no suggestion of any apprehension of bias in relation to the trial itself, nor with respect to my original decision, which is now a sealed exhibit in the court file.
132This recusal motion relates to my ability to hear the two outstanding defence applications: an application for a stay based on lost evidence; and an application for a mistrial based on the evidence of the complainant at the trial against other accused persons in January 2025. The question is whether my comments or conduct between December 4, 2024 and March 20, 2025, are sufficient to displace the presumption that I would obey my judicial oath and decide the lost evidence application and mistrial application fairly and impartially, as viewed from the perspective of an informed and reasonable observer.
133To summarize, the six grounds of allegations are as follows:
Upon being requested by email from the defence to “provide notice to the parties as to whether the accused is entitled to an acquittal,” I caused the trial office to send an email stating that he would not be entitled to an acquittal on the evidence at trial, and then put that on the record at the next appearance on December 4, 2024. There was no objection by the defence at the time. The subsequent objection is that the email was a breach of the accused’s right to be present for all aspects of his trial. Even if that right was breached, which I reject, it was corrected at the first opportunity. This conduct is not even suggested by the defence to give rise to a reasonable apprehension of bias and could not do so.
On December 4, 2024, I refused to provide my existing written decision to the defence. The defence acknowledges that this does not give rise to a reasonable apprehension of bias on its own, but is relevant for context. The defence also argues that comments I made about keeping an open mind created a “Sophie’s Choice” for the defence.
On February 3, 2025, in the absence of a supporting affidavit from the defence, I asked questions relating to the merits of a proposed mistrial application and about whether there was any delay by the defence in bringing that application. Having satisfied myself on both issues (which it was my responsibility to do), I granted the adjournment sought by the defence, over the objections of the Crown.
According to the defence, on February 13, 2025, I sought to revisit my previous ruling about providing the defence with my earlier decision on the merits, thereby putting them back in the same “Sophie’s Choice” they said they were in on December 4, 2024. In fact, I did not revisit my decision to provide my reasons to counsel. Rather, I proposed to, and did, file them as a sealed exhibit, a step which the defence referred to as commendable and to which the defence consented.
On February 13, 2025, I gave defence counsel a heads up about information I had heard about an agreed statement of fact relating to this accused in the trial to which he was not a party, to the effect that he had raped the complainant in 1991. I learned that the defence already knew about it and had ordered a copy. I told the defence at the time that I had not seen the agreed statement of fact. Subsequently, the defence filed it as part of their application record in the mistrial application, which means it is now before me in any event. It is far more extensive than I had known.
Upon being asked for procedural directions as to the hearing of the recusal motion, I directed the trial office to advise the parties that all motions should be scheduled to proceed on March 20, with the order of the applications to be determined on that date. On March 20, I determined that the recusal motion would proceed first. The defence position is that I had already decided to hear the other motions before the recusal, that I lost jurisdiction by doing so, and that I could not retroactively change that. This is simply wrong on all counts. I never decided to hear other matters before the recusal motion; I never told the defence that I would; the defence was told in writing that I would decide the order of the motions on March 20; I did decide the order of the motions on March 20; and I heard and decided the recusal motion first.
134Ground 6 is wrong in fact and law and needs no further comment. Ground 1 is not said to constitute a reasonable apprehension of bias, nor could it. Ground 5 relates to evidence from the other trial that is irrelevant to the merits of this case, but of potential relevance to the mistrial application. I alerted the defence to its existence, but had not seen it. In fact, the defence appears to be of the view that it is relevant to the mistrial application and filed the entire document in its own materials. No reasonable person could conclude that a reasonable apprehension of bias could arise from my having heard ahead of time about the existence of one paragraph of a nine-paragraph agreed statement of fact, which was then provided to me in its entirety by the defence as relevant to their argument on the mistrial application. None of these three grounds can add anything to the overall analysis of whether there could be a reasonable apprehension of bias.
135That leaves Ground 3 (the adjournment request on February 3) and the two grounds related to the alleged “Sophie’s Choice” (Ground 4 and part of Ground 2).
136The defence position is that I presented them with a “Sophie’s Choice,” in that they were required to choose between an unfair hearing (without having the benefit of my earlier reasons) or a biased adjudicator (based on comments I had made about whether releasing the reasons would compromise my ability to be fair). There was no such choice presented. The defence was never entitled to have what essentially amounted to a preliminary draft of my reasons, and I never gave them those reasons. The posited situation of a “compromised” adjudicator therefore never arose. Neither did the defence ever have the option to obtain those reasons. On February 3, I did request further submissions on what to do with those reasons, but I never provided them to the defence, and I never intended to provide them. There was no “choice” given to the defence, much less a “Sophie’s Choice.” Further, there is no entitlement to reasons of the trial judge as to guilt or innocence before proceeding with a lost evidence application. That is virtually never the case and it does not create any “handicap” to counsel in advancing their argument. For the reasons set out above, in my view this could not give rise to a reasonable apprehension of bias.
137Finally, on February 3, 2025, I granted an adjournment requested by the defence, over the Crown’s objections. Understanding my duty as gate-keeper and the reasons for the questions I asked, I have also already reviewed whether a reasonable person could reach the conclusion that I was biased against the defence.
138In my view, there is no merit whatsoever to any of the positions taken, even when viewed cumulatively.
139I am keenly aware of the need to be dispassionate about these issues. Accusations of this nature strike to the core of my integrity as a judge, regardless of whether they are couched (as here) as being merely an apprehension of bias, as opposed to actual bias. Nevertheless, it is necessary to step back and view the allegations as objectively as I possibly can. I have done my best to do that, and in my opinion, they do not pass muster. The application is dismissed.
140The fact situation in which this issue arose in this case was highly unusual and might never happen again. However, in the event it should arise again, in my view, the important principle to be learned is that neither the defence nor the Crown were entitled to know what my disposition of the trial on the merits would have been prior to their motion to reopen, nor were they entitled to know that I had in fact already written a decision I would have issued but for the application the defence now sought to bring. Further, they were not entitled to be advised as to whether I would otherwise have acquitted the accused. At that point in the proceedings, I should simply have decided whether or not to hear the lost evidence application and said nothing about the stage of my deliberations on the merits or what my current thinking was. Had I not acquiesced to the defence request to first advise them whether I would have acquitted the accused based on the evidence at trial, they might still have brought the lost evidence application, and maybe even the mistrial application. However, I very much doubt that the recusal application would ever have been filed. If I erred, it was by being too accommodating and too candid, when there was no requirement that I do so. The result was a flurry of applications brought by counsel who knew that I would have otherwise convicted their client.
MOLLOY J.
Released: May 1, 2025
CITATION: R. v. Dadabhai #2, 2025 ONSC 2588
COURT FILE NO.: CR-23-70000502-0000
DATE: 20250501
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
ABUBAKAR YUSUF DADABHAI
Defendant
REASONS FOR JUDGMENT
MOLLOY J.
Released: May 1, 2025
Footnotes
- R. v. Dadabhai #1, 2025 ONSC 2587 (reasons for conviction); R. v. Dadabhai #3, 2025 ONSC 2589 (reasons for dismissing mistrial application); R. v. Dadabhai #4, 2025 ONSC 2590 (reasons for dismissing lost evidence application).
- Stuart Budd & Sons Ltd. v. IFS Vehicle Distributors ULC, 2016 ONCA 60, 129 O.R. (3d) 37, at para. 50.
- Committee for Justice and Liberty v. National Energy Board, 1976 CanLII 2 (SCC), [1978] 1 S.C.R. 369, at p. 394; Yukon Francophone School Board, Education Area #23 v. Yukon (Attorney General), 2015 SCC 25, [2015] 2 S.C.R 282, at paras. 20-21.
- Yukon Francophone School Board, at para. 22.
- R. v. Teskey, 2007 SCC 25, [2007] 2 S.C.R. 267, at paras. 19-21; Cojocaru British Columbia Women’s Hospital and Health Centre, 2013 SCC 3, [2013] 2 S.C.R. 357, at paras. 14 -22; R. v. S. (R.D.), 1997 CanLII 324 (SCC), [1997] 3 S.C.R. 484, at paras. 32-35.
- Stuart Budd & Sons Ltd., at paras. 48-49.
- R. v. S. (R.D.), 1997 CanLII 324 (SCC), [1997] 3 S.C.R. 484, at pp. 505,
- Kelly v. Palazzo, 2008 ONCA 82, 89 O.R. (3d) 111, at paras. 20-21.
- R. v. Mohamud, 2010 ONSC 5462, at para. 12.
- R. v. Mohamud, at para. 13.
- Transcript of Proceedings at Trial, October 15, 2024, at pp. 14-15.
- Transcript of Proceedings at Trial, October 15, 2024, at p. 15, lines 7-14.
- Transcript of Proceedings at Trial, October 15, 2024, at p. 45, lines 7-15.
- R. v. La, 1997 CanLII 309 (SCC), [1997] 2 S.C.R. 680; R. v. Bero, 2000 CanLII 16956 (ON CA), 79 C.R.R. (2d) 83.
- R. v. La, at paras. 27-28.
- R. v. Bero, at paras. 16-18.
- I deal with this procedural issue in more detail in R. v. Dadabhai #4, [2025] ONSC 2590.
- R. v. Barrow, 1987 CanLII 11 (SCC), [1987] 2 S.C.R. 694; R. v. Poulos, 2015 ONCA 182, 124 O.R. (3d) 681; and R. v. Hassanzada, 2016 ONCA 284, 130 O.R. (3d) 81.
- G.S., at para. 65.
- G.S., at para. 66.
- G.S., at paras. 63-64.
- Transcript of Court Proceedings, December 4, 2024, at pp. 7-8, lines 25-28, 2-12, respectively [Interjections of agreement from Mr. Greenshields omitted.]
- Transcript of Court Proceedings, December 4, 2024, at p. 8-9, lines 15-32, 1-3, respectively.
- Transcript of Court Proceedings, December 4, 2024, at p. 9, lines 4-17.
- Defence Factum for Application for Recusal, at para. 30.
- Vento Motorcyles, Inc. v. Mexico, at paras. 23-24.
- R. v. Nowack, 2018 ONCA 784, at para. 13.
- R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, at para. 63; R. v. Cody, 2017 SCC 31, [2017] 1 S.C.R. 659, at para. 38.
- Kelly v. Palazzo, at para. 21.
- Transcript of Court Proceedings, February 13, 2025, at p. 7, lines 5-24. [Interjections from Mr. Greenshields omitted.]
- R. v. Teskey, 2007 SCC 25, [2007] 2 S.C.R. 267.
- Transcript of Court Proceedings, February 13, 2025, at pp. 8-9, lines 28-32, 1-12, respectively.
- R. v. Barber, [2023] O.J. No. 2267