Court File and Parties

Court File No.: 23-11400302-AP

Date: 2025-10-14

Ontario Superior Court of Justice

Between:

His Majesty the King – and – David Miroslaw Zagorski, Respondent

Counsel:

Vanessa Stewart for the Crown (Appellant)

Joshua Clarke for the Respondent

Heard: June 18, 2025

Reasons for Decision on Summary Conviction Appeal

Anne London-Weinstein J.

Introduction

[1] The Appellant appeals the dismissal/verdict of acquittal entered by the trial judge on the basis that the trial judge demonstrated a reasonable apprehension of bias in the trial by repeatedly interjecting in the examination of witnesses effectively hijacking these examinations, erring in law in conducting an analysis of an alleged section 10(b) breach of the Canadian Charter of Rights and Freedoms, and wrongfully taking judicial notice where it was not available.

Factual Background

[2] The Respondent had originally agreed to a consent finding that he was not criminally responsible ("NCR") in front of another judge (not the trial judge). That agreement fell apart. The matter then ended up in front of the trial judge for trial.

[3] The Respondent has schizophrenia. Police attended to execute a Form 1 under the Mental Health Act, R.S.O. 1990, c. M.7. He became agitated and punched an officer repeatedly in the face. There is a mobile crisis response team trained to assist in matters involving those experiencing mental health crises. They were not called. The Respondent was grounded and dry stunned with a taser. The Respondent had been the subject of a Form 2 shortly before this incident and did not wish to return to hospital. After he was arrested for assaulting the officer and resisting arrest, he was provided with the right to counsel, but he was never afforded the ability to contact counsel. The trial judge also found that the officers did not ascertain whether the Respondent understood his rights, although the officers testified that they tried to explain his rights to him.

Reasonable Apprehension of Bias

General Principles

[4] Appearances matter in our criminal justice system. It is not necessary that a trier of fact be biased in order that a claim of a reasonable apprehension of bias succeed. It is sufficient that there is the mere appearance of bias. The accused person, the Crown and the public are all entitled to a fair trial.

[5] The 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 model realistically and practically, -- and having thought the matter through -- conclude": R. v. S. (R.D.), [1997] 3 S.C.R. 484, at para. 31, citing Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369, at pp. 394-95, per De Grandpré J. (dissenting).

[6] The Appellant has raised numerous issues relating to reasonable apprehension of bias.

Reading of NCR Report

[7] Prior to the commencement of trial, counsel for the Respondent set out to provide the court with background information. The court indicated that the materials had been read, referencing the NCR report that was prepared on May 31st, 2023, for the purposes of the consent NCR hearing that had not gone forward.

[8] The NCR report was a 15-page document that provided the trial judge with information about the Respondent's mental status, but also with his account of the index offence.

[9] The Appellant's position is that by reading the NCR report, a reasonable person would conclude that the trial judge formed a preliminary appreciation of the case before the Crown called any evidence. The Appellant argues that the trial judge's statement that "this isn't somebody who formed an intent to assault the police officer" during an exchange with the Crown was as a direct result of having read the NCR report.

[10] The trial judge read the NCR report which is attached to the information. A trial judge can disabuse themselves of information which is not relevant to the task as a trial judge. Further, the evidence established that the police were seeking to apprehend the Respondent on a Form 1. The judge's comment that he lacked the mens rea of for the index offences was a natural inference to draw given the admissible facts of the case, particularly in reference to public interest in the prosecution of the case on its merits within the context of the Charter issue. Given how this matter unfolded from an NCR plea to a trial before the trial judge, it is understandable that the NCR report was reviewed by the trial judge although it was not in evidence at trial. I would not give effect to this ground of appeal as giving rise to a reasonable apprehension of bias in the context of this case.

Remarks Regarding the Criminalization of the Mentally Ill Accused

[11] At one point, the Respondent's counsel indicated that if its Charter application failed it would proceed with a consent NCR. The trial judge remarked:

I don't know why you would because the Crown elected summarily and the onus on the Crown to bring an NCR when there is a summary election is quite high and they would need evidence to call to be able to support that and quite frankly, we have far too many people that are in the NCR system that shouldn't be there and there are no resources at the moment to be able to address them.

[12] This remark in isolation would not discharge the heavy burden of impartiality which rests with the trial judge. However, the trial judge unfortunately went on to make frequent interventions during the examination and cross-examination of various witnesses and made comments which gave rise to a reasonable apprehension of bias.

Interventions During Examination of Witnesses

[13] The issue of when a trial judge presiding over criminal trial has gone too far in questioning a witness was recently canvassed by the Court Appeal for Ontario in R. v. Walton, 2025 ONCA 368, 448 C.C.C. (3d) 83.

[14] The Court of Appeal held that the trial judge improperly assumed the role of counsel through his interruptions, interjections and questioning of Ms. Walton. In that case, the words of the trial judge assumed even greater significance due to their potential influence on the jury. However, the principle that trial judges should confine themselves to their own responsibilities and leave counsel to perform their own respective functions, consistent with the principle of cautious restraint expected of them, is a principle which applies both to jury trials and judge alone trials.

[15] Examination-in-chief and cross-examination are and must remain the responsibility of counsel; a trial judge should not become an investigator: Walton, at para. 24, citing R. v. Stucky, 2009 ONCA 151, 240 C.C.C. (3d) 141, at para. 69, and R. v. Valley (1986), 26 C.C.C. (3d) 207 (Ont. C.A.), at pp. 230-31.

[16] The trial judge is duty-bound to exercise restraint and remain neutral to promote both the reality and the appearance of fairness: Stucky, at para. 69. A trial judge is entitled to and must "manage the trial and control the procedure to ensure that the trial is effective, efficient and fair to both sides" and to witnesses: Walton, at para. 22 (footnotes omitted).

[17] As pointed out in Walton, a trial judge must not cause a reasonable person to believe that he or she has placed the authority of her office on either side, particularly that of the prosecution, and must also be careful not to usurp the role of counsel because the overall impression created may be fatal to the appearance of trial fairness: at para. 24, citing Stucky, at para. 69, and R. v. Stewart, (1991), 62 C.C.C. (3d) 313 (Ont. C.A.).

[18] The appearance of neutrality is inextricably linked to the appearance of neutrality in any assessment of whether there exists a reasonable apprehension of bias.

[19] When a trial judge does intervene in questioning a witness, "it is important that they use care and not create an impression through the questioning process of having adopted a position on the facts, issues or credibility": Chippewas of Mnjikaning First Nation v. Ontario et al., 2010 ONCA 47, 265 O.A.C. 247, at para. 238.

[20] In Chippewas, at para. 239, the Court of Appeal pointed out that a trial judge should attempt to avoid interfering with the organization and flow of the evidence because judicial intervention might impede counsel in following an organized line of inquiry. This is of particular importance during the conduct of an examination-in-chief. In Walton, the court stated plainly that a trial judge should never cross-examine a witness. Rather, when the trial judge believes it is necessary to question a witness, the judge's questions should be asked after counsel has completed his examination, or at least after counsel has finished a particular line of questioning. An exception would be where a fast clarification is required that does not become a digression: at para. 26.

Specific Instances of Judicial Intervention

[21] Applying the legal principles to the facts of this case, in addition to the incident cited above, there were numerous interjections by the trial judge. The trial judge cross-examined each officer as to why the Mobile Crisis was not called. Some of these questions from the Court include:

The Court: And you're aware you can call Mobile Crisis to come and assist you?

The Court: When it didn't work, wasn't that the moment you should have thought about calling in those experts from Mobile Crisis or from the Mental Health Unit? Anyway, continue.

The Court: So that probably should have put the officers on notice if that was available, that they would have to take precautions with his mentally disordered accused to ensure that he was handled in such a way that things went smoothly, so maybe calling Mobile Crisis or the Mental Health Unit.

[22] The trial judge asked Cst. Williams whether he had a warrant to enter the Respondent's residence prior to the Crown being able to ask the question in her examination-in-chief. The following exchange occurred as the Court interrupted the Crown's examination-in-chief:

The Court: Did you have a warrant to enter his premises?

A: So we have a Form 1 which is considered a mental health warrant.

The Court: I know what it is. It's not actually a warrant-it isn't a warrant, but did you have a warrant to enter his premises? A Form 1 is an application for a position for a psychiatric assessment. Did you have a warrant?

A: Not a warrant, but the-when this is issue, it is considered imminent and he's to be brought to the hospital forthwith.

The Court: On what basis?

A: On the basis of the Form 1. Right? So he was ruled to be a….

The Court: What information did you have?

A: That he was a danger to others.

The Court: How does that justify entering this premises?

A: Because he has to be brought forthwith. We'd been taught through out Mental Health Units that they need to be brought in or else if we leave, and something is to happen, the onus falls on us as officers, that we didn't execute the form, and I have a duty to preserve life and protect and if I was to leave and something was to happen, I could be charged under the Police Services Act, for lack of duty.

[23] At another point in the examination-in-chief, the officer was explaining that he attempted to gain physical control of Mr. Zagorski. After having him explain the escort position, the following exchange occurred between the trial judge and the witness:

The Court: Once you detained him, did you advise him of his right to call a lawyer?

A: Well, he was not being detained for anything criminally, he was being apprehended under the Mental Health Act.

The Court: His liberty was at issue though?

A: Sorry?

The Court: His liberty was at issue, did you advise him that he had the right to call a lawyer?

A: We've never-we've never advised anybody they have the right to contact a lawyer when apprehending then under the Mental Health Act.

The Court: Does that make it right-the fact that you haven't done it?

A: I was always taught we don't have to. It's not anything criminal.

The Court: When there is a deprivation of liberty? Go on.

[24] The Court also asked about the officer's injuries, whether the black eye was the same as the swollen left eye, and whether there were photographs of the injuries. In fact, there were photographs, but the Crown had not been able to yet introduce them. The Crown did so immediately after this exchange with the court and the officer.

[25] As defence counsel cross-examined the officer the Court said:

A: We were engaging him in conversation, yes.

The Court: But you weren't letting him leave.

A: If he had tried to leave, he would have been apprehended for sure, but he wasn't attempting to leave the apartment.

[26] When defence counsel began to move to the area of the application of force as part of his cross-examination, the court again interrupted:

The Court: Did you tell him you are going to have step up your means of detaining him or controlling him?

A: No, I didn't tell him I'm going to step up my means of detaining him….

[27] The next officer to testify was Cst. Leanne House. As the Crown attempted to lead her through examination-in-chief, the trial judge again interrupted.

[28] The Court asked what words were used for the soft caution, and what responses were noted. The Court then asked when Mr. Zagorski was given the opportunity to call a lawyer.

[29] The officer responded that Mr. Zagorski was not given the opportunity because he was taken to the hospital. The Crown then asked whether he asked for an opportunity to contact a lawyer.

[30] The Court again interjected, saying "If you noted it," and asked if the officer read him a more complete caution.

[31] The officer responded that there had been a form, and where there is a form police apprehend.

The Court: Why didn't you call Mobile Crisis was my question. Because they are trained to de-escalate to deal with persons who have mental disorders. That is what their role is, they work in conjunction with the police and hospitals.

A: I guess because we had so many high volume calls we can't call Mental Health Crisis Team for every single situation and again, we're trying to talk to de-escalate. You call them for every single instance that we….

Defence counsel: My sense of it is that it just didn't occur to you. You just didn't even think about it. It didn't cross your mind: we should call somebody else. That, one way or the other, we got to take this guy in. So it probably didn't occur to your right?

A: Well, no because we have to apprehend regardless, and we cannot call somebody else every time, that's our job, it to be able to do this. So we have to be able to handle this on our own as well as there are situations where we would call the Mobile Crisis Team, but in this case, because there was a form and it is our authority, we have to act on that form and take them because it's more or what the word I'm looking for-existent circumstance because it was issued. So it's not like this is the first time that he had ever been dealt with and then maybe we should call in the Mobile Crisis Team. It just wasn't something that I….

The Court: How does that change it? If it's the first time of the 25 th time?

A: I guess because he had already been assessed by a doctor that said…

The Court: How does that change how a mentally disordered accused should be treated and their rights respected?

A: I don't think it changes how they are treated but if we called every single time we had a form we would be on the phone all day…

The Court: And we might not be here.

A: You know?

The Court: Yeah, and we might not be here in courtroom, rather than we might be dealing with it in a civil context.

A: At the same time though, we do make apprehensions often, that don't come back swinging at the officers.

[32] This exchange, in addition to the other interventions of the trial judge, demonstrate that the questions of the trial judge have taken on an investigatory tone, which was cautioned against in Walton, supra. In another exchange:

A: […] once that warrant is issued by a judge, or a doctor sorry…

The Court: It's not a warrant.

A: A mental health warrant.

The Court: It's not a mental health warrant.

A: Once it's issued we have to act on it.

The Court: Just for your education, it is an application by a physician for a psychiatric assessment.

A: Okay, so I always thought it was a mental health warrant, but…

The Court: An application by a physician for a psychiatric assessment.

A: Okay.

[33] The Crown at one point asked about the Respondent's behaviour at the door when police were at his residence. The Crown asked whether he tried to close the door:

A: Yes.

Crown: At what point?

A: Right at the very beginning.

Crown: And what happened?

A: I put my foot at in the door

The Court: Is that one of your de-escalation techniques?

A: No, but it just prevents…

The Court: Tell me what those de-escalation techniques were? I haven't really heard much specific. Tell me about all the steps you took, the protocol that set out that you're aware of them from Ottawa Police.

A: I don't recall the exact protocol in de-escalation. I think it's all for me…

The Court: There's an actual protocol though, isn't there?

A: In de-escalating?

The Court: Yes.

A: Well it's a changing situation, so…..

The Court: I'm asking you if there's a protocol of the Ottawa Police to provide steps and guidelines to assist officers in de-escalation.

A: I'm not aware if there's an actual protocol.

The Court: So then you didn't follow any specific protocol?

A: Well, it's how we are trained.

The Court: Okay, there is an eight-step process for de-escalation. Tell me how you went through.

A: Oh, the eight steps.

The Court: Yeah. Take me through each of these eight steps.

A: I can't take you through all eight steps.

The Court: Why not? You're telling us that you tried to de-escalate and there's an eight step protocol and I'd like to understand what was done.

A: I can't recall all eight steps. I know what when I try to de-escalate a situation, I try to talk to them and try to talk calmly to them and listen and while we listen we try to build rapport and with them some more…

The Court: And you don't have any notes of what was done in this particular situation?

A: You can't make notes at the time because its you can't be talking to somebody and making notes at the same time.

The Court: Was there another officer that was tasked with note taking?

A: Officer safety is something we always have to pay attention to and having a note taker when you first deal with somebody….

The Court: You got three people there on what you call a "routine form 1" right? Anyway, I'll certainly allow any questions arising from my question, but continue with other re-examination you have.

[34] As the above exchange illustrates, the Court at this point interrupted the Crown's examination and engaged in its own inquiry, derailing the organization of the Crown's examination. The Crown at one point also tried to ask a witness when she felt she should have called the Mobile Crisis Unit of the Mental Health Unit:

A: Yeah, I would call them if I felt like this was situation where we needed, but this situation, there almost wasn't even time to do that, like it just happened.

The Court: You could've taken a step back? You could've let him close the door. Contacted somebody who is trained in this area as a specialist. Right?

A: We do not do that for every mental health call.

The Court: Right.

[35] In cross-examination, defence counsel asked an officer if he reviewed the Form 1 before going upstairs to Mr. Zagorski's apartment.

[36] The officer did not recall doing so:

Defence counsel: Was there any discussion between yourself and Constable House about the contents of a Form 1.

A: I don't recall if there is any.

The Court: So if you didn't take any steps to ascertain whether or not it was a valid order?

A: The forms are placed on CPIC…

The Court: No. That wasn't my question. My question was did you take any steps to ascertain that it was a valid Form 1?

A: I don't recall.

The Court: Okay.

Defence counsel: From your perspective, if it was on CPIC, it's valid. That's what I'm getting from...

A: That's correct, year

Defence counsel: Is that fair?

A: That's correct, yeah.

The Court: And that is how you live your life? Assuming what's on CPIC is valid?

[37] The Court also questioned the officer in re-examination about not giving the accused an opportunity to have a private space at the hospital:

The Court: Oh, there could've been. They do that all the time for impaired drivers. They give everyone an opportunity at the hospital.

A: The way the RAZ is set up, it's...

The Court: What steps did you take to try and see if there's a private room that he could make the call?

A: Yeah, I'm not sure the possibility that would allow…

The Court: That's not my question, I asked you what steps you took.

A: No steps.

The Court: No steps ok.

Cumulative Effect of Interventions

[38] The Appellant submits that in addition to the nature of the Court's interjections, the sheer number of them gives rise to an inference that the trial judge had moved away from a position of neutrality. For example, during Cst. Williams' evidence, approximately 58 questions were asked of him during this examination-in-chief and about 116 questions were asked of him during cross-examination. The Appellant points out that the Court interjected 34 times during the examination-in-chief, 7 times during cross-examination and a further 13 times during re-examination with questions that were not directed as simply clarifying matters or procedural matters.

[39] During Cst. House's evidence, about 94 questions were asked in-chief and 102 during in cross-examination. The Court interjected 18 times during the examination-in-chief, 16 times during cross-examination and 13 times during re-examination with questions that were not related to points of clarification of procedural issues.

[40] An appellant bears a heavy burden in dislodging the presumption of impartiality in trying to demonstrate that a trial judge has intervened unduly at trial: Walton, at para. 53, citing R. v. Murray, 2017 ONCA 393, 138 O.R. (3d) 500, at para. 95, and Chippewas, at para. 243.

[41] The Crown did not object to the trial judge's interventions and should have done so as soon as possible: Walton, at para. 54. While a failure to object is a factor, it is not determinative: Walton, at para. 54; See also R. v. K.J.M.J., 2023 NSCA 84, at para. 81.

[42] Taking a cautious approach, and considering the trial in its entirety and not looking at certain matters in isolation, the conduct of the trial judge in this case – interrupting the examination of witnesses and conducting cross-examinations from the bench, and the sheer number and nature of interventions by the trial judge – give rise to a reasonable apprehension of bias. Additionally, some of the comments of the trial judge would cause a reasonable person to believe that the trial judge had assumed a position regarding the matter.

[43] Having found that there is a reasonable apprehension of bias, there must be a new trial.

Conclusion

[44] Given my conclusions, I have not dealt with the issue of the alleged errors in the Charter analysis in this case and will leave that analysis to the next trial of this matter. Likewise, if the issue of judicial notice reappears in any second trial, the matter can be dealt with afresh by the trial judge.

[45] The appeal is granted and a new trial ordered.

Anne London-Weinstein J.

Released: October 14, 2025