



WARNING

The President of the panel
    hearing this appeal directs that the following should be attached to the file:

An order restricting
    publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or
    (4) or 486.6(1) or (2) of the
Criminal Code
shall continue. These sections of
the
Criminal Code
provide:

486.4(1)       Subject
    to subsection (2), the presiding judge or justice may make an order directing
    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in
    proceedings in respect of

(a)     any of the
    following offences;

(i)      an offence
    under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1,
    172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02,
    279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii)      any offence
    under this Act, as it read at any time before the day on which this
    subparagraph comes into force, if the conduct alleged involves a violation of
    the complainants sexual integrity and that conduct would be an offence
    referred to in subparagraph (i) if it occurred on or after that day; or

(iii)     REPEALED: S.C.
    2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b)     two or more offences being dealt
    with in the same proceeding, at least one of which is an offence referred to in
    paragraph (a).

(2)     In proceedings
    in respect of the offences referred to in paragraph (1)(a) or (b), the
    presiding judge or justice shall

(a)     at the first
    reasonable opportunity, inform any witness under the age of eighteen years and
    the victim of the right to make an application for the order; and

(b)     on application
    made by the victim, the prosecutor or any such witness, make the order.

(2.1) Subject to
    subsection (2.2), in proceedings in respect of an offence other than an offence
    referred to in subsection (1), if the victim is under the age of 18 years, the
    presiding judge or justice may make an order directing that any information
    that could identify the victim shall not be published in any document or
    broadcast or transmitted in any way.

(2.2) In proceedings in
    respect of an offence other than an offence referred to in subsection (1), if
    the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible,
    inform the victim of their right to make an application for the order; and

(b) on application of
    the victim or the prosecutor, make the order.

(3)     In proceedings
    in respect of an offence under section 163.1, a judge or justice shall make an
    order directing that any information that could identify a witness who is under
    the age of eighteen years, or any person who is the subject of a
    representation, written material or a recording that constitutes child
    pornography within the meaning of that section, shall not be published in any
    document or broadcast or transmitted in any way.

(4)     An order made
    under this section does not apply in respect of the disclosure of information
    in the course of the administration of justice when it is not the purpose of
    the disclosure to make the information known in the community. 2005, c. 32, s.
    15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25,
    ss. 22,48; 2015, c. 13, s. 18.

486.6(1)       Every
    person who fails to comply with an order made under subsection 486.4(1), (2) or
    (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2)     For greater
    certainty, an order referred to in subsection (1) applies to prohibit, in
    relation to proceedings taken against any person who fails to comply with the
    order, the publication in any document or the broadcasting or transmission in any
    way of information that could identify a victim, witness or justice system
    participant whose identity is protected by the order. 2005, c. 32, s. 15.




COURT OF APPEAL FOR ONTARIO

CITATION: R. v. M.M., 2022 ONCA 63

DATE: 20220126

DOCKET: C68124

Paciocco, Nordheimer and Sossin
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

M.M.

Appellant

Howard L. Krongold
, for the appellant

Gregory Furmaniuk
, for the respondent

Heard: January 13, 2022 by
    video conference

On appeal from the conviction entered by
    Justice Ronald A. Minard

of the
    Ontario Court of Justice, on September 20, 2019
.

Sossin J.A.:

OVERVIEW

[1]

After a five-day trial, the appellant was
    convicted of sexual interference and sexual assault of a 14-year-old
    complainant.

[2]

The appellant was sentenced to 14 months in
    custody, along with a DNA order under ss. 487.04 and 487.051(1) of the
Criminal
    Code
, R.S.C. 1985, c. C-46, an order under s. 490.013(2)(b) of the
Code
to comply with the
Sex Offender Information Registration Act
for 20
    years,

and prohibitions against possessing weapons and contacting the
    complainant.

[3]

The complainant was a friend of the appellants
    daughter. She alleged that the assault took place at a construction site where
    the appellant worked and where he had arranged for the complainant to work for
    the day.

[4]

During a recess in the trial, the trial judge
    was approached by Linda Pearson, a sitting justice of the peace. The justice of
    the peace had access to the area behind the courtroom reserved for judges and
    court staff. She approached the trial judge there. No one witnessed the
    exchange between the trial judge and the justice of the peace, but the justice
    of the peace had advised trial Crown of her intention to approach the trial
    judge.

[5]

According to the trial judge, the justice of the
    peace informed him that she was the mother of M.M.s ex-spouse and the
    grandmother of M.M.s three children. She sought the trial judges blessing
    to attend the trial. The trial judge answered that anyone was free to observe
    the trial in the courtroom. The justice of the peace left the judges chambers,
    but returned shortly after to tell the trial judge he could carry on without
    her because M.M. did not want her watching his trial.

[6]

Upon resuming, the appellant sought a mistrial
    on the basis that the
ex parte
discussion between the justice of the
    peace and the trial judge gave rise to a reasonable apprehension of bias.

[7]

The trial judge dismissed the application for a
    mistrial. He acknowledged that the discussion with the justice of the peace had
    been unfortunate and should not have occurred, but concluded that he was able
    to disabuse himself of the encounter.

[8]

In convicting the appellant, the trial judge
    applied the framework articulated in
R. v. W.(D.
)
,
    [1991] 1 S.C.R. 742. When considering the first branch of the
W.(D.
)
framework,
    the trial judge rejected the appellants evidence denying the substance of the
    complainants allegations. Specifically, the trial judge rejected the
    appellants explanation for sending late night text messages to the
    complainant, noting that the appellant agreed with the suggestion that texting
    the complainant in that way and at that time was not normal.

[9]

The trial judge then briefly considered the
    second branch of the
W.(D.)
framework, where he concluded that he was
    not left in a reasonable doubt by the accuseds testimony. Finally, when
    considering the third branch of the
W.(D.)
framework, the trial judge
    concluded that the complainants evidence was sufficiently credible and
    reliable to prove the case against the appellant beyond a reasonable doubt.

ANALYSIS

[10]

In his Notice of Appeal, the appellant raised
    two grounds of appeal relating to the conviction: first, that the trial judge
    erred in not granting the application for a mistrial based on a reasonable
    apprehension of bias in light of his
ex parte
discussions with the
    justice of the peace; and second, that the trial judge erred in the application
    of the
W.(D.)
framework.

[11]

In oral submissions, the appellant stated he is
    no longer advancing the ground of appeal relating to the trial judges
    application of the
W.(D.)
framework, and is now pursuing only the
    ground of appeal relating to the mistrial.

[12]

The Notice of Appeal also included an appeal
    against the sentence imposed but this ground of appeal was not pursued by the
    appellant.

A.

Did the Trial Judge err in dismissing the
    application for a mistrial?

[13]

The appellant argues that the trial judge erred
    in finding that his
ex parte
discussion with the justice of the peace
    did not lead to a reasonable apprehension of bias. While the appellant takes no
    issue with the actual impartiality of the trial judge and acknowledges the high
    burden to displace the presumption of impartiality, he contends that a
    reasonable person would conclude that the trial judge would not decide the case
    fairly based, in part, on the following elements of the
ex parte
discussion:

·

the communication was with a judicial officer of
    the same court and took place in the area of the courthouse reserved for
    judicial officers and court staff;

·

there was no reason for the justice of the peace
    to approach the trial judge other than to communicate her discernable interest
    in the case;

·

the
ex parte
communication took place
    during the trial; and

·

the appellant faced serious charges where his
    credibility was a central issue in the trial.

[14]

In short, the appellant argues that the justice
    of the peace inserted herself into the trial in a way that destroyed the appearance
    of fairness.

[15]

The Crown opposed the application for a mistrial,
    and argues before this court that the trial judge responded appropriately to a situation
    which was not of his making by taking remedial steps to preserve fairness.
    These included putting his entire recollection of the encounters on the record
    and inviting submissions from the parties on whether the encounters created a
    reasonable apprehension of bias.

(1)

The Reasonable Apprehension of Bias Principle

[16]

The application for a mistrial turned on whether
    the encounter between the justice of the peace and the trial judge gave rise to
    a reasonable apprehension of bias, when considered as a whole and in all of the
    circumstances.

[17]

The reasonable apprehension of bias is a
    principle of fairness. It relates not to the propriety of a judges or a third
    partys conduct, but rather to whether, in the eyes of a reasonable observer,
    the accused is able to receive a fair trial in light of such conduct.

[18]

The test for a reasonable apprehension of bias
    is long-standing, and was first set out by de Grandpré J. in
Committee for
    Justice and Liberty v. National Energy Board
, [1978] 1 S.C.R. 369, at p.
    394 (dissenting):

what 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.
    [Citation omitted.]

[19]

The inquiry into whether a decision-makers
    conduct creates a reasonable apprehension of bias, as a result, is inherently
    contextual and fact-specific. Further, a presumption of impartiality, not
    easily displaced, imposes a high burden on the party alleging bias:
Yukon
    Francophone School Board, Education Area #23 v. Yukon (Attorney General)
,
    2015 SCC 25, [2015] 2 S.C.R. 282, at paras. 25-26.

[20]

At the outset of his reasons dismissing the
    application for a mistrial, the trial judge reiterated the principle that
    justice must not only be done but be seen to be done. With this principle in
    mind, he put the question before him this way: [W]ould the reasonable person
    out there knowing the facts conclude that circumstances that happened were
    sufficiently inappropriate that it compromises at least the latter portion of
    that principle, that justice must be seen to be done[?]

[21]

In my view, the trial judge properly instructed
    himself on the test to be applied on a mistrial application. He correctly focused
    his inquiry on the appearance of bias and the paramount importance of fairness
    to the appellant.

(2)

Applying the Reasonable Apprehension of Bias Principle
    in this Case

[22]

Applying the principle set out above to this
    case, it is important to highlight that both parties agree that the trial judge
    did not act improperly when approached by the justice of the peace.

[23]

The trial judge acknowledged that he was caught
    off guard by the encounter, and that he had never been approached in this way
    during a trial over his 26-27 years on the bench. He stated that, in hindsight,
    counsel for the Crown should have advised the justice of the peace not to speak
    with him in the midst of trial, and that it was not appropriate for her to
    attend. The trial judge also conceded that, although she had the right to do
    so, he himself should have advised the justice of the peace that it would be unwise
    for her to attend the trial given her position and relationship with the appellant.

[24]

While he might have acted differently with the
    benefit of hindsight, the trial judge concluded that, as an experienced jurist,
    the encounters would in no way influence his ability to disabuse his mind of
    what had occurred and uphold the presumption of innocence to which the appellant
    was entitled.

[25]

Finally, the trial judge considered the
    practical implications of a potential mistrial. He noted the additional delay
    which a mistrial would create. He highlighted the difficulty experienced by the
    complainant, who was then in the midst of testifying, and the risk that a new
    trial, including the requirement to testify again before a different judge,
    would significantly worsen her emotional state.

[26]

Weighing all of these factors, the trial judge
    concluded that the encounter was unfortunate and should not have occurred,
    but it did not compromise the fairness of the trial, and that the application
    for a mistrial should be dismissed.

[27]

Neither party was able to cite a case where a
    judges
ex parte
communication with another judicial officer was
    directly at issue. Rather, each party relies on cases involving
ex parte
communications between judges and counsel, parties or others.

[28]

The Crown relies on
R. v. Arnold
,
    [2000] O.J. No. 3749 (C.A.), in which this court affirmed a lower court
    decision finding no reasonable apprehension of bias where a judge had
    communicated with Crown counsel outside the presence of the defence. In that
    case, the application judge concluded that it is not the mere fact of an
ex
    parte
communication that gives rise to a reasonable apprehension of bias
    but rather the content of such communication. Specifically, citing the judgment
    of McLachlin and Major JJ. in
R. v. Curragh Inc.
, [1997] 1 S.C.R. 537,
    at para. 104 (dissenting, but not on this point), the application judge found
    that the content did not create the appearance of bias because it would not
    sway the court to one partys position.

[29]

By contrast, this court found a reasonable
    apprehension of bias in
R. v. C.D.H.
, 2015 ONCA 102, 125
    O.R. (3d) 225, where a trial judge had an
ex parte
conversation
    with the investigating police officer, because the content of that conversation
    involved a specific view expressed by the trial judge that appeared adverse to
    the complainant in the alleged crime.

[30]

While I accept the importance of considering
    whether the content of
ex parte
communications may create the
    appearance of favouring one party over another, there are circumstances where
    the mere fact of
ex parte
communications may itself create an
    appearance of bias. Where, as here, a judicial officer approaches a judge in
    order to make the judge aware of her personal interest in the case, the
    appearance of impartiality may be in doubt, depending on how the trial judge
    responds.

[31]

In this case, had her conduct stood alone, the
    actions of justice of the peace may well have given rise to an appearance of
    bias. The content of the justice of the peaces comments revealed both that she
    had a vested interest in the case as the grandmother of the appellants children,
    and an acrimonious relationship with the appellant. A reasonable person could
    certainly see this communication as swaying the trial judge to disfavour the appellant
    in a case where credibility would be a significant issue.

[32]

However, as indicated, while a third partys
    conduct may be relevant to the analysis, the focus of the inquiry into a
    reasonable apprehension of bias is the conduct of the judge. In this case, had
    the trial judge done nothing but acknowledge this encounter, a reasonable
    apprehension of bias may well have remained.

[33]

The trial judge did not, however, do nothing in
    the face of these encounters. Rather, he took deliberate steps to mitigate the appearance
    of unfairness that this unwelcome encounter might have caused, including the
    following:

·

he put his recollection of the two encounters
    with the justice of the peace on the record within minutes of the second
    encounter;

·

he heard and considered submissions from counsel
    on whether the encounters justified a mistrial; and

·

he explained in his reasons why he believed he
    could remain impartial notwithstanding the encounters.

[34]

The trial judge reasoned that, while the
    encounter may mean that the appellant would not receive a perfect trial, it
    would not mean, when viewed from the perspective of a reasonable observer, that
    the appellant would not receive a fair trial.

[35]

The justice of the peaces decision to approach
    the trial judge in the midst of the trial to make her interest in the case
    known showed a concerning lapse of judgment on her part. In light of the
    remedial steps subsequently taken by the trial judge, however, a reasonable
    observer would not be more likely than not to conclude that the trial judge was
    biased.

[36]

Therefore, the trial judge did not err in
    dismissing the application for a mistrial.

DISPOSITION

[37]

For the reasons set out above, there was no
    error by the trial judge in his dismissal of the appellants application for a
    mistrial.

[38]

Accordingly, the appeal is dismissed.

Released:
January 26, 2022 David M. Paciocco J.A.

L. Sossin J.A.

I agree.
David
    M. Paciocco J.A.

I
    agree. I.V.B. Nordheimer J.A.


