Court File and Parties

Court File Nos.:

• CR-19-16 (Parry Sound)
• CR-19-020 (Parry Sound)
• CR-21-08 (Parry Sound)
• CR-19-1190 (Peterborough)
• CR-20-1353 (Peterborough)
• CR-20-8332 (Sault Ste. Marie)
• CR-21-1202 (Sudbury)
• CR-21-1203 (Sudbury)
• CR-22-12570MO (Sudbury)

Date: 2025-10-09

Ontario Superior Court of Justice

Between:

His Majesty the King, Applicant

– and –

David Brennan, Sarah McQuabbie, Harley Hill, Clayton Hill, Chadwick McGregor, Michael Nolan, Dennis Wigmore, Derek Roque, Noble Boucher & Luke Klink, Accused/Respondents

Counsel:

• B. Bencze and J. Plamondon for the Crown/Applicant
• M. Swinwood for the Accused/Respondents

Heard via Zoom: October 06, 2025

Decision on Application for Summary Dismissal

P.J. Boucher RSJ

Introduction

[1] The Crown applies for summary dismissal of the accused's bias application.

Background

[2] The accused are charged with, among other things, offences under the Cannabis Act, SC 2018, c. 16, in relation to the possession and sale of cannabis. Although charged in different judicial regions, the proceedings are being heard together, because the accused delivered five identical Notices of Constitutional Questions ("NCQs"). In R. v. Brennan, 2022 ONSC 1986, I summarily dismissed four of the NCQs, but I declined to grant summary dismissal of the remaining NCQ brought pursuant to s. 35 of the Charter. That NCQ asks whether the laws under which the charges have been brought do not apply because they infringe the accused persons' traditional use and trade of cannabis and hemp. In R. v. Brennan, 2025 ONSC 5618, I dismissed the Crown's second request for summary dismissal of this NCQ.

[3] The trial on this NCQ began in January 2024. In June 2024 the accused delivered a notice of application and constitutional issue. In that application the accused allege violations of section 11(d) of the Charter as well as the United Nations Declaration on the Rights of Indigenous Peoples ("UNDRIP"). The application alleges "the history of the Jesuits and their adverse involvement with the Indigenous peoples has created a reasonable apprehension of bias". It further alleges the trial judge (myself) and one of the prosecuting Crown attorneys (J. Plamondon) have Jesuits in our family trees which "contributes to the reasonable apprehension of institutional bias in the trial." The application further alleges that because of institutional bias, they cannot "be tried by a fair and public hearing by an independent and impartial tribunal." The relief sought includes convening a traditional Indigenous circle "for resolution of all matters," and in the alternative a mistrial and in the further alternative recusal of the trial judge and prosecuting Crown attorney.

[4] During oral argument of this summary dismissal application, the accused abandoned their allegation of bias in relation to me and J. Plamondon. Instead, they focused their application on the history of the Jesuits and their adverse involvement with Indigenous peoples. They argue the institutional bias was crystallized by a question about the Pope that was put to Chief Stacy Amikwabi during cross-examination.

The Law

Summary Dismissal

[5] The Supreme Court of Canada recently urged caution regarding summary dismissal of applications in the criminal law context. In R. v. Haevischer, [2023] SCC 11, the Court provided the following guidance to application judges:

a. The appropriate threshold the moving party must meet is "manifestly frivolous" (para. 71);

b. "Frivolous" means the application will inevitably or necessarily fail (para. 67);

c. "Manifestly" means the frivolous nature of the application should be obvious on the face of the record (paras. 69 and 71);

d. It is not enough for the moving party to make conclusory statements that the underlying application will not result in the remedy sought (para. 95);

e. The question to be answered on a summary dismissal application is whether "taking the facts and inferences alleged to be true, the party seeking summary dismissal has demonstrated that the underlying application is manifestly frivolous" (para. 101);

f. While the party seeking summary dismissal bears the "manifestly frivolous" onus, the party that brought the underlying application has the "minimal burden" of providing the court with the following:

i. The legal principles, Charter or statutory provisions that have allegedly been infringed;

ii. The evidence to be relied upon and how it may be adduced;

iii. The proposed argument; and

iv. The remedy requested (paras. 95 and 96)

Institutional Bias

[6] In 2747-3174 Québec Inc. v. Québec (Régie des permis d'alcool), [1996] S.C.R. 919, the Supreme Court summarized the test for institutional bias at para. 44 as follows:

As a result of Lippé, supra, and Ruffo v. Conseil de la magistrature, [1995] 4 S.C.R. 267, inter alia, the test for institutional impartiality is well established. It is clear that the governing factors are those put forward by de Grandpré J. in Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369, at p. 394. The determination of institutional bias presupposes that a well-informed person, viewing the matter realistically and practically -- and having thought the matter through -- would have a reasonable apprehension of bias in a substantial number of cases. In this regard, all factors must be considered, but the guarantees provided for in the legislation to counter the prejudicial effects of certain institutional characteristics must be given special attention (emphasis in original).

[7] The Court in R. v. Lippé, 2 S.C.R. 114 further elaborated on institutional bias as follows:

The content of the principle of judicial independence is to be determined with reference to our constitutional tradition and is therefore limited to independence from the government… By "government", in this context, I am referring to any person or body, which can exert pressure on the judiciary through authority under the state (emphasis in original).

Notwithstanding judicial independence, there may also exist a reasonable apprehension of bias on an institutional or structural level. Although the concept of institutional impartiality has never before been recognized by this Court, the constitutional guarantee of an "independent and impartial tribunal" has to be broad enough to encompass this. Just as the requirement of judicial independence has both an individual and institutional aspect (Valente, supra, at p. 687), so too must the requirement of judicial impartiality.

The objective status of the tribunal can be as relevant for the "impartiality" requirement as it is for "independence". Therefore, whether or not any particular judge harboured pre-conceived ideas or biases, if the system is structured in such a way as to create a reasonable apprehension of bias on an institutional level, the requirement of impartiality is not met.

Analysis

The Underlying Application

[8] Section 11(d) of the Charter guarantees that any person charged with an offence has the right "to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal." The accused submit this right has been violated because of institutional bias in relation to these proceedings. They argue a question raised by the Crown during cross-examination of Chief Stacy Amikwabi crystallized this institutional bias.

[9] The questioning was in relation to the witness' handwritten document dated March 31, 2018 that the witness provided to the Ontario Provincial Police ("OPP"). The document states it is a "writ of quo warranto" against the OPP in relation to the lands known as the French River Indian Reserve #13. It states it is "in relation to the Province of Ontario, Government of Canada, Her Majesty the Queen and the Pope in Rome." The exchange is reproduced below:

CROWN: Is it fair to say that the writ quo warranto was based on your belief that the OPP doesn't have jurisdiction in the French River Reserve?

CHIEF AMIKWABI: That would be correct.

CROWN: Okay, and um, you refer in the writ of quo warranto to the Pope in Rome, um, and so what does the Pope, what is the relevance of the Pope?

CHIEF AMIKWABI: The King of England ceded England to the Pope in Rome.

CROWN: When was that?

CHIEF AMIKWABI: 1213.

CROWN: So, in your view the Queen or the Crown reports to the Pope?

CHIEF AMIKWABI: You are a vassal of the Vatican.

CROWN: Me personally?

CHIEF AMIKWABI: The entire system.

[10] The accused submit the handwritten note was an application, not a letter, that should have been passed along to and acted upon by the Attorney General. Further, they argue the Crown's questioning was irrelevant and displayed a lack of appreciation for the historical relationship between the Catholic Church and Indigenous peoples, one they submit led to policies of apartheid including the Residential School system. In addition, Chief Stacy Amikwabi's mother attended a Catholic Residential School, and he states his family name was unilaterally changed from Amikwabi to McQuabbie by the Catholic Church. The accused further submit the questioning resulted in a routing of Indigenous knowledge.

[11] In support of their application the accused delivered an affidavit of about 100 pages in length, including exhibits, from Chief Stacy Amikwabi.

[12] During oral argument of the summary dismissal application, the accused abandoned their alternative claims for relief, leaving only the request for a traditional Indigenous circle to resolve the matters in dispute. Further, the accused clarified the traditional healing circle would be without prejudice to the trial proceedings continuing in the event the circle is unsuccessful. They submit this remedy is fully in line with the UNDRIP.

The Summary Dismissal Application

[13] I am persuaded the underlying application is "manifestly frivolous." In my view, it is plain and obvious on the face of the record that it will necessarily fail.

[14] While the "manifestly frivolous" standard is a high one, so too is the test for institutional bias. There is "a strong presumption of judicial impartiality that is not easily displaced:" Yukon Francophone School Board, Education Area #23 v. Yukon (Attorney General), 2015 SCC 25, [2015] 2 S.C.R. 282 at para. 25. There was no evidence or suggestion there was pressure or influence on the judiciary by the State. There is no suggestion the system is structured in such a way as to cause a reasonable apprehension of bias. Further, there is no logic to the accused's position that if a finding of institutional bias is made, and if the remedy sought, a traditional Indigenous circle, is unsuccessful, the parties would return to complete the trial before this court.

[15] Taken at its highest, the accused's evidence is that improper and insensitive cross-examination by the Crown, however brief, crystallized an otherwise latent institutional bias. Recall that institutional bias relates to the independence and impartiality of the institution itself, outside of individual decision-makers. In my view, nothing about the questioning impacted the appearance of a "fair adjudicative process:" Yukon Francophone School Board, at para. 22. Indeed, no objection was raised at the time. More importantly, the threshold requires a reasonable apprehension of bias in a substantial number of cases. No evidence was tendered regarding this part of the test.

[16] Notwithstanding this decision, nothing stops the parties from engaging in a mutually acceptable dispute resolution process, whether that includes a judicial pre-trial with a court officer or some other process.

Conclusion

[17] For these reasons, the application for summary dismissal is granted, and the underlying application for institutional bias is dismissed.

[18] A copy of this decision shall be placed in each of the following court files:

a. CR-19-16 (Parry Sound);

b. CR-19-20 (Parry Sound);

c. CR-21-08 (Parry Sound);

d. CR-19-11900 (Peterborough);

e. CR-20-1353 (Peterborough);

f. CR-20-8332 (Sault Ste. Marie);

g. CR-21-1202 (Sudbury);

h. CR-21-1203 (Sudbury); and

i. CR-22-1257-MO (Sudbury)

The Honourable Regional Senior Justice P.J. Boucher

Released: October 09, 2025