



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Montoya, 2015 ONCA 786

DATE: 20151117

DOCKET: C56257

MacPherson, Tulloch and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Elvira Montoya

Appellant

Peter Thorning and Richard Diniz, for the appellant

Dayna Arron, for the respondent

Heard: November 16, 2015

On appeal from the conviction entered on July 10, 2012
    and the sentence imposed on November 28, 2012 by Justice Feroza Bhabha of the
    Ontario Court of Justice.

ENDORSEMENT

[1]

The appellant, Elvira Montoya, was convicted of fraud over $5000 and two
    counts of uttering forged documents for her role in assisting a straw buyer
    to obtain a mortgage. The mortgagee bank suffered a loss of $118,873 as a
    result of the fraud. The appellant was sentenced to a 12 month conditional
    sentence and ordered to pay $25,000 in restitution. She appeals her conviction
    on one ground and her sentence on one ground.

[2]

On the conviction appeal, the appellant submits that the circumstances
    surrounding the trial judges
Charter
s. 11(b) ruling gave rise to a
    reasonable apprehension of bias.

[3]

On November 22, 2010, the day the trial commenced, the appellant brought
    an application for a stay of proceedings on the basis of unreasonable delay.
    The trial judge reserved her decision on the application. Because there was
    still a half-day of court time and the first Crown witness was there, the trial
    judge suggested that they proceed with his evidence. The Crown agreed and defence
    counsel did not object. The witness testified for the rest of the day.

[4]

The next day, the appellant discharged her trial counsel and requested
    an adjournment to retain new counsel. The trial judge granted the adjournment
    and dismissed the s. 11(b) application with reasons to follow.

[5]

It took the appellant a long time to retain new counsel. The trial
    resumed more than a year later on December 7-8, 2011. The evidence was not
    completed and additional time was scheduled. On February 13, 2013, the trial judge
    delivered comprehensive reasons for dismissing the s. 11(b) application.

[6]

The appellant contends that this chronology establishes a reasonable
    apprehension of bias in two respects.

[7]

First, the appellant submits that the trial judge should not have heard evidence
    from the main Crown witness (the afternoon of the first trial day) before
    making her s. 11(b) ruling (the start of the second trial day). The appellant
    says that this chronology exposed the trial judge to critical pieces of the
    Crown case and this may have influenced her s. 11(b) ruling.

[8]

Second, the fact that the trial judge delivered her reasons for the s.
    11(b) ruling 15 months after the application, and after hearing two more days
    of evidence, suggests again that her s. 11(b) ruling may have been tainted by
    the evidence she heard.

[9]

We do not accept these submissions. An allegation of reasonable
    apprehension of bias should not be made lightly. That is because, as McLachlin
    C.J. said in
Cojocaru v. British Columbia Womens Hospital and Health
    Centre
, 2013 SCC 30, at para. 22:

There is a presumption of judicial integrity and impartiality.
    It is a high presumption, not easily displaced. The onus is on the person
    challenging the judgment to rebut the presumption with
cogent evidence
showing that a reasonable person apprised of all the relevant circumstances
    would conclude that the judge failed to come to grips with the issues and
    decide them impartially and independently.                                                                                            [Emphasis
    added.]

[10]

In
    our view, the appellants submissions on this issue do not come close to the
    cogent evidence required by
Cojocaru
.

[11]

In
    most cases, a trial judge makes her s. 11(b) ruling before any evidence is
    called. However, in light of the exceptionally busy dockets in provincial
    courts, we cannot say this practice must be an invariable one.

[12]

In
    this case, the trial judge indicated that she was inclined to hear from the
    first witness, after indicating that she would reserve her decision on the s.
    11(b) application. This witness had travelled to Australia rather than attend
    on an earlier trial date, and was the subject of a material witness warrant. He
    was present when argument was completed on the s. 11(b) application. Crown
    counsel indicated that he was content to proceed with the evidence of the first
    witness that afternoon. Defence counsel was silent. The trial judges decision
    to hear a few hours of evidence from this witness before she formally dismissed
    the s. 11(b) application the next morning does not give rise to a reasonable
    apprehension of bias. There is nothing in the ruling on that application to
    suggest that it was affected by the evidence heard before the application was
    dismissed.

[13]

Nor
    does the fact that the s. 11(b) ruling was delivered 15 months later once the
    trial had resumed raise a bias concern. During a trial, rulings with reasons to
    follow is a common and necessary practice. The reasons on the s. 11(b)
    application in this case are very comprehensive and address carefully and in
    detail the submissions that the parties, especially the appellant, made at the
    application hearing. There is not even a hint that the ruling was coloured by
    the evidence heard between the day she announced her ruling (the second trial
    day) and the day she delivered her reasons.

[14]

On
    the sentence appeal, the appellant challenges only the restitution portion of
    the sentence; she says that the trial judge did not consider her ability to
    pay, contrary to decisions of this court, including
R. v. Biegus
(1999), 141 C.C.C. (3d) 245 and
R. v. Castro
, 2010 ONCA 718.

[15]

We
    do not accept this submission. There is no doubt that the trial judge was alive
    to the issue of the appellants ability to pay a restitution order. During the
    sentence hearing, the trial judge explored this issue through several questions
    directed at defence counsel. Moreover, in her reasons for sentence, the trial
    judge recorded:

She reports that she currently has no source of income, other
    than casual remuneration for working for Mr. Gonsalves, the father of her son,
    and Mr. Disotti, her current common-law spouse. She reports that she has no
    savings.

[16]

The
    conviction and sentence appeals are dismissed.

J.C. MacPherson J.A.

M. Tulloch J.A.

G. Pardu J.A.


