



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Funes, 2016 ONCA 567

DATE: 20160714

DOCKET: C57828

MacFarland, van Rensburg and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Brian Funes

Appellant

Joseph Di Luca and Dan Stein, for the appellant

Davin Michael Garg, for the respondent

Heard: May 31, 2016

On appeal from the conviction entered on March 19, 2013
    and the sentence imposed on July 19, 2013 by Justice Ian B. Cowan of the Ontario
    Court of Justice.

ENDORSEMENT

[1]

The appellant appeals his conviction for various offences in connection
    with the possession and storage of a firearm. He seeks leave to appeal his
    sentence of five years in prison.

[2]

The appellant was tried by a judge in the Ontario Court of Justice. The
    trial took four days, with two days of trial in late December 2012 and two days
    in February 2013. The trial judge reserved his decision and convicted the
    appellant with written reasons for judgment on March 19, 2013.

[3]

The appellant contends that the trial judge erred in refusing a mistrial
    application after the judge realized he had been sitting on a preliminary
    inquiry involving the appellant as an alleged victim and in which the appellant
    had testified. The appellant also argues that the trial judge, in convicting
    him of firearms offences in relation to a gun that was found in his friends
    house, erred in relying on certain voice recognition evidence offered by a
    police officer who monitored wiretap conversations in an unrelated
    investigation. A further ground of unreasonable verdict was withdrawn at the
    hearing of the appeal. The appellant contends that his sentence was excessive
    and unreasonable in all the circumstances.

[4]

For the reasons that follow we conclude that the trial judge ought to
    have declared a mistrial in the exceptional circumstances of this case. We
    would allow the appeal and direct a new trial on this basis. As such, it is
    unnecessary to address any other ground raised in the conviction and sentence
    appeals.

[5]

The relevant facts are as follows. The firearm in question, a 12 gauge
    sawed-off shotgun, together with five rounds of ammunition, was found in a gym
    bag in the bedroom of the appellants friend Joseph Magdangal, during the
    execution of a search warrant at an address in Mississauga. There was nothing
    in the room to connect the appellant to the gun.

[6]

Magdangal was originally charged with the appellant. Two months before
    the trial he pleaded guilty to the offence of possession of a prohibited
    weapon. In the course of his guilty plea, he attributed ownership of the
    firearm and ammunition to the appellant, saying that the appellant had asked
    him to store the weapon at his home and that he had agreed to do so. When he
    testified at the appellants trial in December 2012, however, Magdangal claimed
    that he was the owner of the gun. He denied that he was holding it for the
    appellant. When the trial continued in February 2013, he testified consistently
    with his guilty plea.

[7]

The Crown also introduced as evidence at the appellants trial certain
    recorded telephone conversations from wiretap surveillance targeting the
    appellant and several other persons in an unrelated homicide investigation. The
    Crown contended that the appellant was a participant in certain exchanges, and
    was the Brian referred to in conversations relating to a gun. Magdangal identified
    his own voice and the voices of the appellant and a third person on the
    recordings, and said they were talking about the appellants gun. There were
    also references in the conversations to Brian having been shot. Magdangal
    admitted that the appellant was the only Brian he knew who had been shot.

[8]

An officer who conducted live monitoring of the wiretaps also identified
    the appellants voice in three intercepts. He testified that he had reached the
    point where he could recognize the participants in the wiretaps by their
    voices. The officer acknowledged that he had direct contact with the appellant
    only once, when he served notice of the wiretap authorization. He also
    acknowledged that prior to his testimony he had listened to the recordings that
    morning before court, and before that he had last listened to the voices almost
    a year before in the monitoring room.

[9]

In his reasons for judgment, the trial judge recognized that it would be
    unsafe to convict the appellant based solely on the evidence of Magdangal, who
    was a classic
Vetrovec
witness. This included both Magdangals direct
    evidence that he was holding the gun for the appellant, and his identification
    of the appellants voice in the intercepts. The trial judge found confirmatory
    evidence in the officers recognition of the appellants voice in the wiretap
    recordings as well as in the substance of what was discussed in the wiretaps. He
    noted that the case turned on whether he could be satisfied beyond a reasonable
    doubt that the persons speaking in the wiretaps included the appellant. He said
    he was satisfied that the voice as identified was that of the appellant and
    that he was talking about the same shotgun that had been found in Magdangals
    possession.

[10]

After
    delivering written reasons convicting the appellant on March 19, 2013, the
    trial judge adjourned the case to April 26th for sentencing.

[11]

The
    morning after the conviction, the trial judge was reviewing his notes on a
    preliminary inquiry he was to continue that day. It was only then that he realized
    that he had been presiding over a preliminary inquiry in an attempted murder
    case in which the appellant Brian Funes was one of two alleged victims of a
    shooting. He notified counsel in both cases.

[12]

The
    preliminary hearing had commenced in July 2012. The appellant testified for two
    days in November 2012 before the case was adjourned. Meanwhile, the first day
    of evidence on the appellants firearms charges took place December 31, 2012.
    That trial continued on February 21, 2013 and was completed with closing
    submissions the following day. The appellant did not testify at his own trial.

[13]

Mistrial
    applications were brought in both proceedings. The issue was whether there was
    a reasonable apprehension of bias resulting from the judges involvement in the
    two cases. In both cases, counsel acknowledged that there was no actual bias,
    and that it was understandable that the trial judge, in the busy Brampton
    court, would not recognize the alleged victim in one case as the accused in
    another. Indeed, the appellants counsel acknowledged that no one, the
    appellant included, had recognized that the trial judge was the same judge that
    was presiding over the preliminary inquiry.

[14]

The
    judge granted a mistrial in the preliminary inquiry in the attempted murder
    proceedings. In his reasons he noted that, because he had listened to wiretap
    evidence in a trial involving an alleged victim of the shooting that was not in
    evidence in the preliminary inquiry, and had made certain findings in that
    case, he had knowledge he should not possess in the preliminary hearing
    proceedings. He concluded that a reasonably minded person would not know the
    inferences he might draw and a fair-minded person looking at the case and
    knowing the circumstances might apprehend that he could not exclude from his
    mind and disabuse his mind of any evidence from the appellants trial.

[15]

The
    trial judge refused to grant a mistrial in the appellants case. He concluded
    that, since he had already rendered a decision, with reasons supporting the
    decision based upon the evidence called by the Crown, and without making any
    findings of credibility against the appellant, a reasonable person informed of
    the background of [the] case would not conclude that there [was] a reasonable
    apprehension of bias in its determination.

[16]

The
    appellant asserts that the trial judge erred in two ways in refusing a mistrial.
    First, he says that, having declared a mistrial in the preliminary hearing in the
    attempted murder case, it was illogical for the trial judge not to have
    declared a mistrial in these proceedings  that result should have flowed
    automatically from the mistrial ruling in the preliminary inquiry. Second, the
    appellant contends that the trial judge erred in focusing on whether his
    judgment had in fact been influenced by his involvement in the preliminary
    inquiry, rather than considering whether there was a reasonable apprehension of
    bias arising out of his having heard the appellant testify in the preliminary
    inquiry in a case where he was the alleged victim of a shooting.

[17]

For
    the reasons that follow, we would give effect to the second argument but not the
    first.

[18]

The
    applicable legal principles are set out concisely in
Wewaykum Indian Band
    v. Canada
, 2003 SCC 45, [2003] 2 S.C.R. 259. In that case, the Supreme
    Court considered a partys challenge to a decision the court had already
    rendered. The author of the courts decision, Binnie J., had some involvement
    in the matter 15 years earlier in his capacity as federal Associate Deputy
    Minister of Justice. The appellant asserted that the decision was tainted by a
    reasonable apprehension of bias.

[19]

As
    the point of departure, the court noted at para. 59, that there is a
    presumption of impartiality of the judiciary that carries considerable weight.
    The burden is on the party arguing for disqualification to establish that the
    circumstances justify a finding that the judge must be disqualified from
    deciding a particular case.

[20]

The
    court observed at para. 62 that most arguments for disqualification typically
    begin with an acknowledgment by all parties that there was no actual bias, and
    move on to a consideration of the reasonable apprehension of bias. The court
    explained at para. 65, [W]hen parties say that there was no actual bias on the
    part of the judge, they may be conceding that the judge was acting in good
    faith, and was not consciously relying on inappropriate preconceptions, but was
    nevertheless unconsciously biased.

[21]

The
    court continued at para. 66:

To put it differently, in cases where disqualification is
    argued, the relevant inquiry is not whether there was in fact either conscious
    or unconscious bias on the part of the judge, but whether a reasonable person
    properly informed would apprehend that there was. In that sense, the reasonable
    apprehension of bias is not just a surrogate for unavailable evidence, or an
    evidentiary device to establish the likelihood of unconscious bias, but the
    manifestation of a broader preoccupation about the image of justice. [Emphasis
    omitted.]

[22]

And
    at paras. 60 and 74, the court stated the question as follows, based on the
    test set out by de
Grandpre J. in
Committee for Justice and Liberty et al. v. National Energy Board et al
., [1978] 1 S.C.R. 369: What
would an informed
    person, viewing the matter realistically and practically  and having thought
    the matter through  conclude? Would this person think that it is more likely
    than not that [the judge], whether consciously or unconsciously, did not decide
    fairly?

[23]

In
    the preliminary inquiry proceedings, the judge in this case granted a mistrial
    after applying the correct test  he focused on the fact that he had heard wiretap
    evidence that the Crown had not intended to lead in those proceedings, and he
    noted that a reasonably minded person would not know the inferences he might
    draw and might apprehend that he could not disabuse [his] mind of any evidence
    from the Funes matter. The fact that he granted a mistrial in those
    proceedings did not mean that he had to grant a mistrial in the appellants
    case. The two applications did not stand or fall together. Each mistrial
    application had to be considered separately and in light of the impact of the
    judges involvement in another proceeding on the perceived fairness of the
    proceeding in question.

[24]

While
    the issue in the preliminary inquiry proceedings was the impact of the trial
    judges having heard the wiretap evidence, the issue in the appellants case
    was the impact of what the trial judge heard during the preliminary inquiry on
    the perceived fairness of the appellants trial. In that regard, the issue was
    whether a reasonable person would conclude that the trial judge may have been
    consciously or unconsciously influenced by the evidence he heard in the
    preliminary inquiry in deciding the appellant was guilty of the firearms
    offences.

[25]

The
    trial judge, in conducting this assessment, noted that he had made the decision
    based on the evidence and that he had not had to determine the appellants
    credibility. The issue, however, was not how he had in fact decided the case,
    but the perception of fairness as a result of what he heard during the
    preliminary inquiry. Further, the fact that the trial judge had not been
    required to determine the appellants credibility (which arguably might have
    been seen to have been affected by events at the preliminary inquiry, where the
    judge exhorted the appellant to answer questions and granted the Crown the
    right to cross-examine him), was not the main concern. The issue was the impact
    of the evidence heard during the preliminary inquiry on what became a central
    issue in the appellants trial  the identification of his voice in the wiretap
    intercepts.

[26]

The
    trial judge recognized that he could not convict the appellant based on Magdangals
    evidence alone. As such, he looked for confirmation of that evidence, which he
    found in the wiretapped conversations. As he noted in his reasons, he had to be
    satisfied beyond a reasonable doubt that one of the speakers was the appellant.
    Two pieces of evidence he relied on were the police officers identification of
    the appellants voice and the content of the conversations, which included the
    fact that the speaker, also named Brian, had acknowledged in one of those recordings
    that he had been shot.

[27]

The
    appellant did not testify at his trial. However, the trial judge, through his
    involvement in the preliminary inquiry, had an opportunity to hear the
    appellant speak. He also had knowledge that the appellant was in fact a Brian
    who had been shot.

[28]

In
    the unusual circumstances of this case, and in particular given the specific
    issue that fell to be determined in the appellants trial, a mistrial ought to
    have been granted because of the trial judges participation in the preliminary
    inquiry and what had transpired in those proceedings. Again, the issue is not
    the trial judges actual ability to determine the case based only on the
    evidence at trial, which is not in doubt. Rather, the issue is the perception
    of fairness, and, as articulated in
Wewaykum Indian Band
, the broader
    preoccupation about the image of justice. In our view, a reasonable person
    considering the matter in a fully informed way would apprehend that the trial
    judge would have been influenced, albeit unconsciously, by the evidence in the
    preliminary inquiry in his consideration of the appellants guilt in the
    subject proceedings.

[29]

For
    these reasons the appeal is allowed, the conviction set aside and a new trial
    ordered, before a different judge.

J. MacFarland J.A.

K. van Rensburg J.A.

Grant Huscroft J.A.


