Ontario Superior Court of Justice

Court File No.: CR-21-15528-00AP
Date: 2025-07-18

BETWEEN:
His Majesty the King (Respondent)
– and –
Jack Stelwagen (Appellant)

Paul T. Murray, for the Crown
Leo A. Kinahan, Counsel, for the Appellant

Heard: April 25, 2025
J. Speyer

Reasons for Judgment

A. Introduction

[1] The issue to be decided on this appeal is whether comments made by the trial judge during scheduling proceedings about his ability to hear a s. 11(b) application, if such an application was to be made, gave rise to a reasonable apprehension of bias such that a mistrial should have been declared. The appellant seeks an order that the appeal should be allowed, and a new trial ordered because the trial judge should have recused himself and declared a mistrial.

[2] In his ruling on this issue, delivered on December 16, 2020, Frazer J. reviewed the law that governs applications for a mistrial when it is alleged that something a trial judge said or did gives rise to a reasonable apprehension of bias. Justice Frazer concluded that his comments that gave rise to the mistrial application did not indicate that he had a predisposition to rule in a particular way on the s. 11(b) application. He dismissed the application for a mistrial.

[3] The appellant accepts that Frazer J.’s recitation of the applicable legal principles was correct in law. It is the position of the appellant that Frazer J. erred in his application of that law to the facts of this case.

B. The History of the Case

[4] This case has a long and complicated history. I will review only those parts of it that are necessary to understand the scope of this summary conviction appeal and to provide context for the issue to be determined.

[5] The respondent was charged with sexual assault on August 28, 2018. The Crown elected to proceed summarily.

[6] The trial started on November 4, 2019. The evidence was completed on November 24, 2020.

[7] After the evidence was completed, the appellant brought a motion for a mistrial. It was his position that comments made by the trial judge about his ability to hear a s. 11(b) motion gave rise to a reasonable apprehension of bias. The trial judge dismissed the application. The trial judge also dismissed the s. 11(b) motion. The trial judge convicted the appellant.

[8] The appellant appealed to the summary conviction appeal court, claiming that the trial judge erred in various ways, including in dismissing the motion for a mistrial. The summary conviction appeal judge did not address this ground of appeal because he concluded that there was a breach of s. 11(b). As a result, the conviction was set aside, and the proceedings were stayed. The other grounds of appeal were not considered.

[9] The Crown appealed to the Court of Appeal. The Court of Appeal set aside the stay of proceedings and reinstated the conviction because the appellant’s s. 11(b) right to a trial within a reasonable time was not breached. The Court of Appeal also remitted the matter back to the Superior Court of Justice for determination of the issues not dealt with on the first summary conviction appeal.

[10] At the hearing of the appeal in relation to the issues not dealt with on the first summary conviction appeal, the appellant abandoned all grounds of appeal but one. The appellant maintains his position that the trial judge erred in dismissing his motion for a mistrial because comments made by the trial judge about his ability to hear a s. 11(b) motion gave rise to a reasonable apprehension of bias.

[11] These reasons explain why I conclude that comments made by the trial judge about his ability to hear a s. 11(b) motion did not give rise to a reasonable apprehension of bias.

C. The Facts Relating to the Motion for a Mistrial

[12] The appellant’s trial was scheduled to proceed in the Ontario Court of Justice over six days in November 2019. The trial did not finish during the allotted time.

[13] The parties appeared before Frazer J. on December 2, 2019, to continue the cross-examination of the last Crown witness. When that witness’ evidence, and the Crown’s case, concluded, counsel spoke with Frazer J. about dates to continue the trial. The discussion related to setting one day for defence evidence, a second day for oral submissions to supplement written submissions as to guilt or innocence, and a third day for judgment. During that discussion, the following exchange occurred:

THE COURT: The other - the other point I raised with the Trial Coordinator, and I think it would be inappropriate in this situation where one of the reasons for delay may be the Court's scheduling, and I think it would be inappropriate for this Court to sit in judgment of its own scheduling, that any 11(b) application, if brought, should be before another judge so that I don't sit in judgment of –

MR. KINAHAN: No, that's fine, and Your Honour –

THE COURT: The role that I've played in setting these dates.

MR. KINAHAN: I'm not - I'm not saying there will be an 11(b). I came into this game late. The trial dates were already set. I wanted to make sure that they were in accordance with - that I could meet those dates. So I don't know what happened in advance. There may have been dates offered earlier. I haven't talked to Mr. MacKenzie who was former counsel on it and I don't know. So it may very well be that there is - we're making much of nothing at this point. I really don't know. I have to see the transcripts and I have to speak to Mr. MacKenzie first hand.

THE COURT: I think we need to provide for that eventuality.

MR. KINAHAN: Yup. Okay.

THE COURT: Stand up, please, Mr. Stelwagen. Your matter's adjourned, sir, to April the 6th, at 9:30 in the morning in a courtroom in this building to be determined.

[14] Frazer J.’s reference to the role that he played in setting the dates refers to his status as a semi-retired per diem judge, and his scheduled winter vacation abroad for the first three months of 2020.

[15] The appellant did bring a s. 11(b) motion before another judge, Misener J., on February 27, 2020. Misener J. concluded that she did not have jurisdiction to hear the motion because she was not the trial judge. Misener J. did not agree that Frazer J. could not hear the s. 11(b) motion because his own conduct might be one of the issues that he would have to consider.

[16] The appellant’s counsel advised Misener J. that “if it does have to be heard in front of Justice Frazer I anticipate I’m probably going to be bringing a mistrial application on behalf of my client on the basis of a reasonable apprehension of bias, that based on his own comments I don’t think he’s able to hear this application which I get the complete irony that it would only serve to delay this matter further.”

[17] The appellant then brought an application for mandamus in the Superior Court of Justice, seeking an order directing Misener J. to hear the s. 11(b) Charter application.

[18] The mandamus application and the trial continuation were unable to proceed as scheduled because the COVID-19 pandemic caused the regular operations of the courts to be suspended.

[19] The mandamus application was heard virtually on October 2, 2020, by Leibovich J. He dismissed the application on October 14, 2020. He confirmed that Misener J. had no jurisdiction to hear the s. 11(b) Charter application. Leibovich J. explained, at para. 14 of his reasons, that Frazer J. could and should hear the s. 11(b) application:

The trial judge seems to have thought that since his scheduling was an issue another judge should and could hear the application. He was wrong in this regard. As Misener J. noted in this case, a judge hearing an 11(b) application is frequently called upon to comment on the judge’s own schedule or the scheduling processes of that court house or that region. Judges are also, for example, required to look at their own conduct when addressing allegations that they are biased or that their actions give rise to a reasonable apprehension of bias.

[20] Leibovich J. also concluded that Frazer J.’s comments did not suggest that he had prejudged the issue or that he could not approach it with an open mind, such as to disqualify him on the basis that his comments gave rise to a reasonable apprehension of bias.

[21] Counsel appeared before Frazer J. on October 23, 2020, to set dates to conclude the trial. Defence counsel told Frazer J. that “my interpretation of [Frazer J.’s earlier comments] is that you have acknowledged the reasonable apprehension of bias test in trying to say someone else should be doing this.” The trial judge replied:

Oh, not at all, Mr. Kinahan. Not at all. My clear reason for not wanting to hear it myself is because as a per diem Justice I was in part responsible for part of the delay in this case because of my annual vacation, and where ... in my view a trial judge has had a hand in the scheduling of his own case how can that trial judge rule impartially on whether or not the delay is reasonable or not?

[22] It does not appear that Frazer J. had been provided with the decisions of Misener J. and Leibovich J. when these comments were made.

[23] Dates were eventually set to complete the evidence on November 23 and 24, 2020, and November 27, 2020, was set aside for argument on the merits of the trial proper and on two defence applications: an application for the trial judge to recuse himself from hearing the s. 11(b) Charter application based on a reasonable apprehension of bias, and the s. 11(b) application itself.

[24] Justice Frazer dismissed the motion for a mistrial, dismissed the s. 11(b) application, and convicted the appellant of sexual assault.

D. Analysis

(a) The Positions of the Parties

[25] The appellant submits that Frazer J. erred by relying on the conclusion of Leibovich J. that he was not precluded from hearing a s. 11(b) application, and that Frazer J.’s comments did not suggest that he could not approach a s. 11(b) application with an open mind, or that he had prejudged the issue. The appellant asserts that Frazer J. was obliged to explain what he meant by his comments that it would be inappropriate for him to sit in judgment of his own scheduling and his expressed concern about whether a trial judge who has had a hand in the scheduling of a trial can rule impartially on whether the delay was reasonable or not, and then to decide whether an informed reasonable person would conclude that Frazer J. was biased.

[26] The Crown responds that an informed person, viewing the matter realistically and practically, would conclude that Frazer J. could decide the s. 11(b) application fairly. The Crown submits that Frazer J.’s comments were brief moments of self-reflection and reveal his commitment to fairness. There is no evidence that Frazer J. had made up his mind about an issue or that he had a predisposition to one side or the other. Frazer J.’s concerns were misplaced, and he accepted the decisions of a judge of concurrent jurisdiction and a judge of the Superior Court about that. There was nothing in Frazer J.’s conduct of the s. 11(b) application, or in his reasons for dismissing that application, that evidences any bias on his part.

(b) The Applicable Legal Principles

[27] The standard of review on this appeal was described by the Ontario Court of Appeal in R. v. Marrone, 2023 ONCA 742, at para. 91:
“Where the issue is reasonable apprehension of bias, an appellate court reviews the matter anew. No deference is owed to the lower court’s determination.”

[28] It matters not that the Court of Appeal concluded that Frazer J.’s s. 11(b) decision was correct. As the Court of Appeal noted in Marrone, at para. 92, “[w]hen bias is found to be present in a judicial proceeding it taints it completely and is not cured by the correctness of the ultimate result.”

[29] Where the words or actions of a trial judge give rise to a reasonable apprehension of bias to the informed and reasonable observer, the trial will be rendered unfair. Actual bias need not be shown.

[30] The test for reasonable apprehension of bias was recently stated in R. v. Jaser, 2024 ONCA 448, at para. 311:

The test for establishing a reasonable apprehension of bias is whether a reasonable person, properly informed and viewing the matter realistically and practically, would conclude that the decision-maker could not decide the case fairly: Committee for Justice & Liberty v. Canada (National Energy Board), [1978] 1 S.C.R. 369, at p. 394, per de Grandpré J. (dissenting); Yukon Francophone School Board, Education Area No. 23 v. Yukon Territory (Attorney General), 2015 SCC 25, at paras. 20-21; and Marrone, at para. 93.

[31] Judges are presumed to be impartial. The appellant bears a heavy burden to rebut this presumption: R. v. Dowholis, 2016 ONCA 801, para 18; Wewaykum Indian Band v. Canada, 2003 SCC 45, para 59; R. v. S., at para. 117; Marrone, at para. 94. The presumption may only be rebutted by “cogent evidence that demonstrates that something the judge did or said gives rise to a reasonable apprehension of bias”: Jaser, at para. 312.

[32] The comments of Frazer J. about whether he should hear the s. 11(b) application must be viewed in the context of the entire record to determine whether the alleged bias influenced the decision-making process or the overall appearance of the fairness of the proceedings: R. v. MacMillan, 2024 ONCA 115, para 78; Jaser, at para. 313; R. v. Colley, 2024 ONCA 524, para 72. The Supreme Court of Canada stressed the importance of this approach in Yukon Francophone School Board, at paras. 25-26:

[25] Because there is a strong presumption of judicial impartiality that is not easily displaced, the test for a reasonable apprehension of bias requires a “real likelihood or probability of bias” and that a judge’s individual comments during a trial not be seen in isolation. [Citations omitted.]

[26] The inquiry into whether a decision-maker’s conduct creates a reasonable apprehension of bias, as a result, is inherently contextual and fact-specific, and there is a correspondingly high burden of proving the claim on the party alleging bias [citations omitted.] As Cory J. observed in S. (R.D.):

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

(c) The Principles Applied

[33] The critical question is not whether Frazer J.’s expressed concern about sitting in judgment of events affected by his sitting schedule was misplaced, but rather whether his concern was expressed in a way that would cause a reasonable person, properly informed and viewing the matter realistically and practically, to conclude that he could not decide the case fairly, with an open mind. In my view, that reasonable person would conclude that Frazer J. could and would decide the s. 11(b) application fairly and with an open mind.

[34] The immediate reaction of experienced defence counsel to Frazer J.’s expression of concern in the moment discloses no concern about Frazer J.’s ability to fairly adjudicate a s. 11(b) application, should such an application be brought. The concerns of Frazer J. were first expressed during a discussion with counsel about scheduling dates for the continuation of a trial that was not completed in the time scheduled for the trial. At that time, no s. 11(b) application had been made. At that time, defence counsel had not decided whether to make a s. 11(b) application. Defence counsel responded to Frazer J.’s comment that it would be inappropriate for him to sit in judgment of the role he played in setting the dates if a s. 11(b) application was to be made by telling Frazer J. that he was not saying that a s. 11(b) application would be brought, and that “it may very well be that there is – we’re making much of nothing at this point.”

[35] I view Frazer J.’s comments on December 2, 2019, and on October 23, 2020, as reflecting nothing more than an acknowledgement that his sitting schedule played a role in the scheduling of the trial and his awareness that exercising impartial judgment about any delay caused by his sitting schedule could be difficult. But his comments did not reflect or communicate any predisposition to decide the s. 11(b) issue one way or the other. Trial judges routinely make decisions about the legal effect of their own conduct, or that require them to disabuse themselves of inadmissible evidence that they have heard. Judges are expected and able to make decisions based only on relevant, material, and admissible evidence, including evidence about how their schedules have impacted the progress of a trial.

[36] A reasonable person, who is properly informed and views the matter realistically and practically, would know that a judge who is aware that a decision may demand intellectual rigour and discipline is well-placed to approach their analysis fairly and with an open mind.

[37] That person would know that Frazer J. unequivocally rejected defence counsel’s statement that “you have acknowledged the reasonable apprehension of bias test in trying to say someone else should be doing this.” To that suggestion, Frazer J. responded: “Oh, not at all, Mr. Kinahan. Not at all.”

[38] A reasonable person, who is properly informed and views the matter realistically and practically, would consider the strong presumption of judicial integrity and impartiality when evaluating Frazer J.’s comments.

[39] That person would also know that Misener J. and Leibovich J. held, in the circumstances of this case, that there was no reason why the trial judge could not hear the s. 11(b) application just because his vacation schedule affected the scheduling of the trial, and that there was nothing in Frazer J.’s comments to indicate that he had already decided the s. 11(b) motion and did not have an open mind. That reasonable and informed person would know that Frazer J.’s comments were perceived by two other jurists as reflecting an unwarranted overabundance of caution and would conclude that Frazer J.’s comments demonstrated a commitment to fairness and impartiality rather than bias.

E. Conclusion

[40] For the foregoing reasons, the appeal is dismissed.

The Honourable Justice J. Speyer
Released: July 18, 2025