This week’s top three summaries: R v KJMJ, 2023 NSCA 84: #bias, R v Moreira, 2023 ONCA 807: lay #opinion, and R v MacAdam, 2024 ONCA 13: trafficking #expert alternative possibilities.
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R v KJMJ, 2023 NSCA 84
[November 29, 2023] Reasonable Apprehension of Bias: Expressing Opinions on the Merits Before Argument [Reasons by Bryson J.A. with Bourgeois and Derrick JJ.A. concurring]
AUTHOR’S NOTE: Even when judges are invited to express their opinions by the parties, they cannot do so without risking a reasonable apprehension of bias arising from the fact of such a discussion. Herein, the judge was invited to do precisely that by a prosecutor before arguments were heard. Unfortunately, instead of expressing interest in submissions on certain topics, the trial judge expressed conclusions about issues like which charges were proven and credibility findings he was considering regarding the accused. Subsequent attempts to keep this from the record of the proceedings by the judge failed because there is no such thing as an off the record discussion in the body of the court while the recording is running. A judge cannot expunge things from a recording before it goes to the appeal court. Here, such an attempt failed and contributed the reasonable apprehension of bias findings.
Reasons for judgment:
Introduction
[1] The astonishing behaviour of the trial judge in this case requires a salutary reminder of the duty of all judges privileged to hear and decide cases in court:
[…] it is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.
[2] This legal imperative flows from the “overriding public interest that there should be confidence in the integrity of the administration of justice ”.
[4] K.J.M.J. alleges the trial judge made three serious errors creating a reasonable apprehension of bias by:
(a) Offering premature conclusions on the outcome of certain charges, prior to the conclusion of trial;
(b) Repeatedly making disparaging and conclusory remarks about K.J.M.J.’s character, triggering the forbidden risk of propensity reasoning; and
(c) Attempting to “cover up” his errors by directing that a part of the trial transcript be deleted from the record, in violation of the open court principle and the right of meaningful appellate review.
[5] The passages to which K.J.M.J. takes particular exception include:
THE COURT: Is he swimming with angels? Look at me, sir. Is he swimming at angels and totally innocent? Absolutely not. Does he have issues and invited some young child to do stuff to him? Absolutely. Zero doubt in my mind. He’s got issues. Yeah, I’m looking at you. You’ve got issues, sir. You’ve got sexual deviance issues. There’s no doubt in my mind. Is it proven here? Probably not. Do you have issues? Yeah, you do. You should get them fixed. Do you understand? […]
THE COURT: He’d be guilty of count three, inviting a child to do stuff. That’s where I’m at. Sexual assault, I’m not so sure. You know, the fact she says there wasn’t penetration, it was just a quarter or a half, that’s — that’s her mindset and that doesn’t convince me there was no penetration.
[6] Shortly after, the Crown asked the judge, “I think I’d still like an opportunity to try and at least make some argument”.
[7] No doubt K.J.M.J.’s counsel shared a similar sentiment.
[8] The Crown’s request to make submissions prompted the judge to characterize his comments as “initial impressions”, which should not be in the record:
THE COURT: […] while it was recorded, it’s an off-the-record comment and won’t form part of the transcript because we just — I was invited to give some initial impressions and I gave my initial impressions. […] I honestly don’t know where I’m leaning on this for the most part.
[9] A few moments later, he said:
THE COURT: So when they prepare the transcript, make sure they don’t have my comments from when we sat back and talked.
[10] We know of the impugned exchange and the judge’s attempt to expunge it from the record because the transcriptionist asked the Crown whether it should be included and was instructed to do so. More will be said about this later.
[11] Remarkably, the judge wrote to the Court of Appeal in reply to a courtrequested inquiry of court staff regarding a restriction placed on the audio recording of the trial. The judge claimed a purported “privilege” which he did not “waive” and questioned the Crown’s authority to authorize inclusion of his “initial impressions” in the record. Again, more will be said about this email later.
[12] K.J.M.J. says that prior to hearing any argument, and so before conclusion of the trial, the judge expressed strong negative conclusions about his character, his credibility, and indicated a predetermination about one of the charges.
[13] The Crown does not defend the propriety of the judge’s comments but argues that no reasonable apprehension of bias arises in the full context of the case. While the judge’s comments were “unfortunate”, they were heard after all of the evidence was in and reflected merely a “preliminary appreciation of the case”. The Crown says no “nefarious purpose” should be imputed to the judge for attempting to delete part of the record.
[14] The impropriety of the judge’s conduct does not warrant the Crown’s generous characterization. For reasons elaborated on below, the judge’s startling language and behaviour gives rise to a reasonable apprehension of bias and offends judicial impartiality, the presumption of innocence, the open court principle, the right to make full answer and defence, and could have frustrated appellate review.
[15] The convictions should be set aside and a new trial ordered.
[19] In June of 2020, K.J.M.J. was charged with sexual assault, touching a young person for a sexual purpose, and inviting a young person to touch him for a sexual purpose. K.J.M.J. pleaded not guilty. The evidence was heard on June 29 and 30, 2021. The complainant and her mother testified. K.J.M.J. testified in his own defence and denied all the charges.
[20] At the conclusion of the evidence, before any argument had been heard, Crown counsel asked the judge on behalf of both counsel if “there’s certain parts or certain issues we should focus on” and whether he had “any preliminary thoughts”. After an evidentiary preamble, the judge then described K.J.M.J. as a “sexual deviant” who was guilty of inviting the complainant of touching for a sexual purpose, about which he had “[z]ero doubt”. Further problematic remarks followed, concluding with the judge’s comments that he was speaking “off-therecord” and directing exclusion of his comments from the record.
[21] The trial was then adjourned for submissions. These were made on November 16, 2021. The judge reserved his decision. He delivered it on January 24, 2022. He found the complainant’s evidence “compelling and credible”. He rejected the evidence of K.J.M.J. He did not believe K.J.M.J.’s denials. He convicted K.J.M.J. of all three charges. The case was adjourned for sentencing.
[23] The record on which K.J.M.J. relies for his appeal begins at the conclusion of the evidence at trial but before arguments had been scheduled or heard. K.J.M.J. takes especial exception to the emphasized passages:
MS. BARRETT: Myself and Mr. Hoehne just spoke, and we just felt perhaps there might be — or if Your Honour is prepared to do so — as Crown I’m in no way conceding this case at this point in time but, you know, sometimes we informally have discussions. If — if, for example, there’s certain parts or certain issues we should focus on versus not, if Your Honour has any preliminary thoughts — I mean, sometimes judges don’t need so much time to make decisions, but if you have any preliminary thoughts, or if you don’t want to go there — if you want to give us guidance on what issues to focus on if we…
THE COURT: Is he swimming with angels? Look at me, sir. Is he swimming at angels and totally innocent? Absolutely not. Does he have issues and invited some young child to do stuff to him? Absolutely. Zero doubt in my mind. He’s got issues. Yeah, I’m looking at you. You’ve got issues, sir. You’ve got sexual deviance issues. There’s no doubt in my mind. Is it proven here? Probably not. Do you have issues? Yeah, you do. You should get them fixed. Do you understand?
[K.J.M.J.]: I understand what you’re saying, Judge.
THE COURT: Yeah. Don’t argue with me because I know I’m right. This is what I do for a living.
MS. BARRETT: Based upon that, Your Honour, one of the frustrations I’ve had doing sexual assaults with judge and jury is victim, family members …
THE COURT: He’d be guilty of count three, inviting a child to do stuff. That’s where I’m at. Sexual assault, I’m not so sure…
THE COURT: But there’s just lots of little things there. Did he have issues? Does he have sexual deviance issues? No doubt in my mind he does. No doubt in my mind he does. It’s just such a high threshold. Did something happen? Absolutely. Do I know exactly what happened? No.
MS. BARRETT: Perhaps…
THE COURT: Does he have issues, sexual deviance issues? Absolutely
MS. BARRETT: I did want an opportunity to speak with the victim, her support person and her mom. I think I’d still like an opportunity to try and at least make some argument.
THE COURT: Yeah.
MS. BARRETT: Does Your Honour feel that we are beyond that …
THE COURT: No.
MS. BARRETT: … at this point in time?
THE COURT: No. I mean, that’s pretty much — while it was recorded, it’s an off-the-record comment and won’t form part of the transcript because we just — I was invited to give some initial impressions and I gave my initial impressions. I — you know, I honestly don’t know where I’m leaning on this for the most part. Things happened, there’s no doubt about that. How far, how much can I accept, you know, it’s the accepting some of the witness’s evidence and not the other, but I have to go back and think it through myself.
THE COURT: Things happened. Exactly what do I think happened? I’ll figure that out as we go on. But we’ll go from there. So when they prepare the transcript, make sure they don’t have my comments from when we sat back and talked.
[Emphasis added.]
[24] The foregoing was included in the Appeal Book on the strength of an agreement between counsel embodied in the following letter submitted to the Court:
RE: [K.J.M.J.] v. His Majesty the King, C.A.C. No. 513996
The Appellant, with consent of the Respondent, seeks to put forward three agreed facts to the Court for the purposes of the above-noted appeal:
1. The external transcriptionist preparing the transcript of the Appellant’s trial for the present appeal contacted the Nova Scotia Public Prosecution Service’s Appeals and Special Prosecutions Office to inquire whether the portion of the trial transcript referenced by the Trial Judge as being “offthe-record” should be included in the transcript.
2. The query was brought to the attention of Mr. Mark Scott, K.C., who confirmed that it should be included.
3. The parties understand that the transcriptionist’s request pertained to the portion of the trial transcript found at Tab 13 of the Appeal Book at page 210, line 10 to page 216, line 11.
[26] Trial proceedings are recorded. Typically, the Court of Appeal has access to these audio recordings. In this case, the Court could not listen to the recording of the foregoing transcript because access had been restricted. Accordingly, the Court instructed a Deputy Registrar of the Court to write to counsel as follows:
The Panel thanks you both for Mr. Seshagiri’s letter of the 19th, copied to Ms. MacLellan.
The Panel has a follow up question. A restriction has been placed on the Voxlog recording of the proceedings transcribed from pp. 210 to 216, referred to in Mr. Seshagiri’s letter, so the Panel is currently unable to listen to that part of the record.
The Panel requests that counsel make inquiries: 1) to determine who authorized the restrictions placed on the Voxlog recording; 2) when those restrictions were placed; and 3) what reason or explanation was given for the restriction.
In view of the imminence of the appeal, the Panel looks forward to your prompt reply.
[28] In reply, on September 26, 2023, the Registrar of the Court received this email from the trial judge which was copied to counsel:
It is very obvious from the transcript at Tab 13 that the discussion between myself and counsel were to be without prejudice and off the record:
– pg. 214: “…it’s an off-the-record comment and won’t form part of the transcript…”
– pg. 216: “So when they prepare the transcript, make sure they don’t have my comments from when we sat back and talked.” [Emphasis in original.]
It is very clear that I, as the trial judge, was invited by counsel, after counsel had met outside of the courtroom to discuss this for 18 minutes, to provide comments. The only reason that I agreed to do so was that I was invited by counsel, and that it was on the condition that it would not form part of the record/transcript.
I question where Mr. Scott finds the authority to go behind the clear agreement between counsel and the trial judge to unilaterally decide that the “off-therecord” comments would now somehow be part of the record and transcript. This is certainly a breach of basic legal principles.
[29] More will be said later about the novel legal propositions in this email. For now, it suffices to observe that the record does not support the judge’s assertions of any agreement that his comments were conditional on them being “off the record”. The judge’s attempt to impose confidentiality on his remarks followed rather than preceded his indiscretions. Regardless, it is improper for the judge to suggest he can insulate himself from appellate scrutiny by pausing the trial as he seems to suppose.
[30] At the appeal hearing, the Court asked counsel to provide additional written submissions on whether the judge’s email should be considered as part of the record for the purposes of appeal. Written submissions by counsel followed.
Should the judge’s September 26, 2023 email form part of the record?
[31] The judge’s email was a reply to counsel’s letter to Court Services of September 25, 2023 inquiring about when, why and who authorized restriction of access to the audio recording of the impugned passages. K.J.M.J. submits that the judge’s email of September 26 should form part of the record and is admissible under s. 682(1) of the Criminal Code, which provides:
Report by judge
682(1) Where, under this Part, an appeal is taken or an application for leave to appeal is made, the judge or provincial court judge who presided at the trial shall, at the request of the court of appeal or a judge thereof, in accordance with rules of court, furnish it or him with a report on the case or on any matter relating to the case that is specified in the request.
[32] K.J.M.J. cites R. v. E. (A.W.), [1993] 3 S.C.R. 155, in which the majority accepted that reports under s. 682(1) may be used in “rare circumstances where something has occurred which is not reflected on the record upon which opposing counsel cannot agree” (at p. 192).
[33] K.J.M.J. also refers us to R. v. Pan; R. v. Sawyer, 2001 SCC 42 at ¶45 which describes the role of s. 682(1) and what it may not be used for:
[45] A judge’s decision may be challenged on appeal, but judges cannot be compelled to testify as to how and why they arrived at a particular judicial decision: MacKeigan v. Hickman, [1989] 2 S.C.R. 796; Valente v. The Queen, [1985] 2 S.C.R. 673; Beauregard v. Canada, [1986] 2 S.C.R. 56. In fact, as a general rule, reviewing courts do not seek information from the courts whose judgments they are reviewing in order to assess the likely impact of apparent errors. The limited exception to this is s. 682(1) of the Criminal Code, which requires the trial judge to “report” to the court of appeal at the request of the court of appeal. As noted by Cory J. for the majority of this Court in R. v. E. (A.W.), [1993] 3 S.C.R. 155, at p. 192, the court of appeal should only request such a report “in those rare circumstances where something has occurred which is not reflected on the record upon which opposing counsel cannot agree”. In any event, it is neither designed nor used to probe into the deliberative process of the decision maker, be it judge alone or jury.
[34] Other cases illustrative of an appropriate use of s. 682(1) relate to clarifying the trial record: R. v. C.W.G. (1993), 36 BCAC 234; R. v. Sadoroszney (1999), 132 C.C.C. (3d) 320 (BCSC); R. v. Williams (1995), 58 BCAC 53; R. v. MacMillan, 2002 BCCA 306; R. v. Hossainnia, 2011 BCCA 117; R. v. Lund, 2006 BCCA 296.
[35] K.J.M.J. argues the judge’s email should be considered as part of the record because this Court’s request for additional information did not relate to the merits of the judge’s decision. Nor did the judge’s reply do so or trespass on the deliberative process. The inquiry in this case concerned the scope of the record. Moreover, the judge’s email was not an unsolicited interference in the appeal. It responds to counsel’s letter to Court Services, copied to the judge. Counsel’s letter implemented this Court’s request.
[36] K.J.M.J. adds that his appearance of bias argument does not depend upon admission of the September 26 email from the trial judge but is augmented by that letter.
[37] For its part, the Crown concedes that the trial judge’s email can be considered part of the record either under s. 682(1) or simply by agreement. The Crown agrees the email should be part of the record on appeal.
[38] For the reasons advanced by K.J.M.J. and, additionally, in light of the Crown’s concession, the September 26 email should form part of the record on appeal.
Was the impugned record “privileged” as the judge claims?
THE COURT: No. I mean, that’s pretty much — while it was recorded, it’s an off-the-record comment and won’t form part of the transcript because we just — I was invited to give some initial impressions and I gave my initial impressions. I — you know, I honestly don’t know where I’m leaning on this for the most part.
[40] From the foregoing, it would appear the judge considered his comments to be “off-the-record” because he was invited to give some “initial impressions” and he gave them. In his letter, the judge asserted an agreement with counsel; questioned the Crown’s authority to include the impugned passages within the record; and claimed that he had not “waived” any “privilege”.
[42] The judge’s September 26 email makes several alarming assertions. The factual error of an “agreement” with counsel that his comments were “off the record” has already been noted. But the judge goes further. He claims the Crown’s decision to include the impugned remarks on the record offends “basic legal principles”. He asserts a right to “consent” to those remarks forming part of the record, which he purports not to have “waived”. No authority is cited for these astounding propositions because there is no such authority.
[43] Judicial independence recognizes two judicial privileges. One immunizes judges from civil suit for actions taken in the course of their judicial duties. A second exempts them from testifying with respect to those judicial duties.
[44] Judicial privilege exists to protect the institution of the court, not individual judges. The privilege cannot be waived by an individual judge (see: Ermina v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1785 (FCTD), 160 F.T.R. 317 at ¶10; Kosko v. Bijimine, 2006 QCCA 671 at ¶43; R. v. Baldovi, 2016 MBQB 90 at ¶22).
[45] It is immediately obvious that the claimed “privilege” in this case does not exist. The exchange occurred in open court with counsel and parties present. Other than exceptions that have no application here, there is no privilege over conversations with the judge during trial.
[46] The judge’s asserted “privilege” offends the open court principle.The judge cannot evade breach of his judicial obligations by claiming that such remarks were “off the record”, whether solicited by counsel or not. The errors of counsel do not define the duties of the judge.
[47] The judge’s disturbing comments betray a fundamental misconception of the role of judge and counsel in a criminal trial. In both criminal and civil proceedings, it is possible to have “off the record” discussions between counsel and sometimes with a judge present in an effort to reach an informal resolution of the merits. A criminal trial is not one of those occasions. Such efforts at resolution do not occur mid-trial in open court. Judges involved in pre-trial “off the record” attempts at resolution do not hear the case on the merits. That is for another day and another judge. The trial judge here appears to have confused tentative directions with impermissible conclusions.
[48] Off the record discussions are not immune from appellate review for reasonable apprehension of bias, even in civil cases when less is at stake for the complaining party. In Sandboe v. Coseka Resources Ltd., 1989 ABCA 22, the offending judicial language occurred in the judge’s chambers with only counsel present. That did not preclude appellate review for a reasonable apprehension of bias. But in a criminal trial, the accused is entitled—indeed obliged—to be present at trial.That means being present for anything affecting an accused’s vital interests.Absent the accused, meetings between counsel and the judge in which defences and possible pleas were discussed, and in which the judge offered an opinion, constituted a breach of s. 650(1) of the Criminal Code.
[50] It sometimes happens that counsel will ask a judge whether there are issues of fact or points of law on which the judge would especially like to hear argument. In many cases, that is unobjectionable. In this case, credibility was fundamental and such comments were neither necessary nor desirable. Counsel was wrong to ask, and the judge was certainly wrong to oblige.
[51] What Sandboe and cases like it make plain is that conduct giving rise to a reasonable apprehension of bias need not be “on the record” to be objectionable.Unrecorded comments in a judge’s chambers may give rise to a reasonable apprehension of bias and trigger a request for recusal.
The Law Respecting Reasonable Apprehension of Bias
[52] The Charter links the presumption of innocence to a fair trial before an independent and impartial tribunal:
11. Any person charged with an offence has the right: […]
(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;
[53] The paramountcy of impartiality has been prominently noticed by the Supreme Court (R. v. Curragh Inc., [1997] 1 S.C.R. 537; R. v. S. (R.D.), [1997] 3 S.C.R. 484). In R. v. Schneider, 2004 NSCA 99, this Court said:
[68] Nothing is more important in the legal system than the impartiality of judges. […]
[54] The vital necessity of judicial impartiality is a very old principle of our common law. Sir Matthew Hale was Chief Justice of the King’s Bench of England in the 1670s. He put it this way in some of his resolutions which he wrote out to guide his conduct at the time:
That I suffer not myself to be prepossessed with any judgment at all, till the whole business and both parties be heard.
That I never engage myself in the beginning of any cause, but reserve myself unprejudiced till the whole be heard.
The principles embodied in these sentiments endure today.
[55] If a reasonable apprehension of bias is established owing to a judge’s words or conduct, then the judge has exceeded his or her jurisdiction and erred in law. The recent decision of R. v. Lilly, 2023 NSCA 80 at ¶44, quotes from relevant jurisprudence of this Court applying Supreme Court of Canada authority:
[44] This issue arises for the first time on appeal. The test for determining a reasonable apprehension of bias was set out in C.B. v. T.M., 2013 NSCA 53:
[31] If a reasonable apprehension of bias arises from a judge’s words or conduct, then the judge has exceeded his or her jurisdiction and erred in law: R. v. S. (R.D.), [1997] 3 S.C.R. 484 at ¶ 99. In C.H.D. at ¶ 25, Hamilton J.A., for this court set out the test for reasonable apprehension of bias:
25 The test for a reasonable apprehension of bias is set out in R. v. R.D.S., [1997] 3 S.C.R. 484:
[31] The test for reasonable apprehension of bias is that set out by de Grandpré J. in Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369. Though he wrote dissenting reasons, de Grandpré J.’s articulation of the test for bias was adopted by the majority of the Court, and has been consistently endorsed by this Court in the intervening two decades: [citations omitted]. De Grandpré J. stated, at pp. 394-95:
… 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 … [T]hat test is “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.”
The grounds for this apprehension must, however, be substantial and I … refus[e] to accept the suggestion that the test be related to the “very sensitive or scrupulous conscience”. [Emphasis added]
[32] In S. (R.D.) at ¶ 35, the Supreme Court of Canada observed that according to its Commentaries on Judicial Conduct (1991), the Canadian Judicial Council stated at p. 12:
True impartiality does not require that the judge have no sympathies or opinions; it requires that the judge nevertheless be free to entertain and act upon different points of view with an open mind.
[33] According to S. (R.D.), to successfully assert that a judge might be partial, one must demonstrate that the beliefs, opinions, or biases held by the judge prevent him or her from setting aside any preconceptions and reaching a decision based only on the evidence:
113 Regardless of the precise words used to describe the test, the object of the different formulations is to emphasize that the threshold for a finding of real or perceived bias is high. It is a finding that must be carefully considered since it calls into question an element of judicial integrity. Indeed an allegation of reasonable apprehension of bias calls into question not simply the personal integrity of the judge, but the integrity of the entire administration of justice. See Stark, supra, at paras. 19-20. Where reasonable grounds to make such an allegation arise, counsel must be free to fearlessly raise such allegations. Yet, this is a serious step that should not be undertaken lightly. [Emphasis added]
[Emphasis in original.]
[56] Establishing a reasonable apprehension of bias is very difficult to do, in part because there is a strong presumption of judicial impartiality. The appellant must lead evidence establishing “serious grounds” sufficient to justify that a decision maker should be disqualified owing to an apprehension of bias. Whether such an apprehension exists is highly fact specific and depends on the context.
[57] The test for a reasonable apprehension of bias is objective and is related to the requirement that justice must be seen to be done.
[58] Once a reasonable apprehension of bias is found the only remedy is a new trial because the judge has lost jurisdiction.
Does a reasonable apprehension of bias arise in this case?
[59] K.J.M.J. says a reasonable apprehension of bias is apparent from:
a) The judge’s predetermination of at least one charge;
b) His critical comments of K.J.M.J.’s character;
c) His attempt to “cover up” his in-court comments.
Predetermination of the charges?
[61] The judge’s problematic comments were prefaced with, “I can come close to giving you a decision right now”. These words are dangerous territory. The trial is not concluded until the parties have made submissions or had the opportunity to do so. A verdict announced before submissions deprives an accused of the right to make full answer and defence. As K.J.M.J. argues, this has been uncontroversial since the Supreme Court’s decision in R. v. Aucoin, [1979] 1 S.C.R. 554, relied upon by this Court in R. v. MacLean (1991), 106 N.S.R. (2d) 213:
[5] In our opinion, it is incumbent upon a trial judge to give a party appearing before him an opportunity to present argument before making a decision on any issue. In particular, a party must be allowed to make submissions at the close of the evidence. See R. v. Aucoin, [1979] 1 S.C.R. 554. In the context of a criminal case, these rights are among those guaranteed to an accused as a component of fundamental justice under s. 7 of the Charter, and more particularly by s. 11(d) thereof, and by s. 802(1) of the Criminal Code.
[62] K.J.M.J. highlights the judge’s comments on the invitation to sexual touching:
Does he have issues and invited some young child to do stuff to him? Absolutely. Zero doubt in my mind. […] He’d be guilty of count three, inviting a child to do stuff. [K.J.M.J.’s emphasis.]
[65] K.J.M.J. relies upon the Ontario Court of Appeal in Roy, in which the judge, in his chambers, suggested the accused consider accepting a plea on a lesser charge. The Ontario Court of Appeal found this compromised judicial impartiality, the presumption of innocence, and trial fairness:
[5] After most anxious consideration of what was said and the evidence that had been heard, we have reached the conclusion that we must give effect to this ground of appeal. A judge conducting a trial without the intervention of a jury is of course the trier of fact and determines the question of guilt or innocence. In my opinion he cannot initiate such a discussion after entering upon the trial and hearing evidence and still preserve the appearance of impartiality and being of an open mind, which qualities are so essential to a fair trial and the meaning of the presumption of innocence. The fact that he initiates such a discussion and sends counsel to the accused with talk of pleas of guilty and terms of sentence could reasonably result in apprehension by the accused that the judge presiding at his trial had reached some conclusions about the case. It does not hurt to repeat again that justice must appear to be done. This is not limited simply to what is seen from the floor of the courtroom or by the public but includes what transpired here. It is also vital that justice must appear to be done, to the accused man in particular. In those circumstances we think the trial lacked this quality and therefore it cannot stand.
[Emphasis added.]
[67] Arguing that judges may comment on the evidence mid-trial, the Crown concedes the judge’s language in this case was “unfortunate” but maintains that it does not give rise to a reasonable apprehension of bias, citing R. v. Potter; R. v. Colpitts, 2020 NSCA 9 at ¶743 which quoted from the Alberta Court of Appeal in R. v. Baccari, 2011 ABCA 205 at ¶24:
[24] During argument, trial judges are not precluded from commenting on evidence or attempting to focus the argument on issues of particular concern to the trial judge. Give and take between a trial judge and counsel may be robust but observations made by a trial judge during argument are not pronouncements: R. v. Hodson, 2001 ABCA 111, 281 A.R. 76 at paras. 33 and 35. A trial judge is not precluded from voicing concerns about the evidence. Nor is a trial judge precluded from directing counsel’s attention to the real issues in the case. Trial judges are not expected to be mute manikins: R. v. W.F. M. (1995), 169 A.R. 222 (C.A.) at para. 10.
[68] Notably, Baccari distinguishes between “observations” and “pronouncements”. In Baccari, the judge asked counsel to focus on evidence placing Baccari at the scene of the crime. Identity was crucial. The judge was focussing on the evidence, not giving a decision.
[69] By contrast, in this case, the judge unequivocally said K.J.M.J. invited “some young child to do stuff to him”; and, to repeat, “Absolutely. Zero doubt in my mind. […] He’d be guilty of count three, inviting a child to do stuff”. These are not comments on the evidence, but conclusions.
[75] But as the Crown argues, context is important. Most of the judge’s equivocal language followed his insistence that his comments were “off-the-record” and “won’t form part of the transcript”. An objective observer could reasonably consider the judge’s apparent equivocation as damage control. The judge’s earlier conclusions about K.J.M.J.’s credibility and guilt cannot be retrieved by a belated resumption of a proper judicial demeanour. Nor can one infer indecision and reflection simply because the judge rendered his decision months later. Time alone does not mitigate the apparent bias displayed in the comments made.
[81] It would obviously have been preferable if K.J.M.J. had raised the matter of reasonable apprehension of bias before the trial judge. But the fair trial rights of an accused should not turn on the alacrity with which counsel acts—or fails to act— on such a grave allegation. Counsel’s silence is not waiver. Raising an issue of reasonable apprehension of bias is a serious matter. In this case, counsel would have been doing so with a judge whom he would see in a busy local provincial court on a regular basis.
[82] No possible curative behaviour by the trial judge is proposed by the Crown. No gamesmanship is apparent. There is no evidentiary vacuum because apprehension of bias was not raised at trial. The judge’s provocative comments and his efforts to prevent this Court from considering them are before this Court. We also have the dubious benefit of the judge’s objections to our possession of this record.
[83] The specific question for resolution here is whether the judge’s remarks meet the test for reasonable apprehension of bias. Adapting the language from Wewaykum: what would an informed person, viewing the matter realistically and practically—and having thought the matter through—conclude? Would this person think it is more likely than not that the judge, whether consciously or unconsciously, did not decide fairly?
[84] The judge’s comments, offered prior to closing arguments, disclose his conclusion that K.J.M.J. was guilty of invitation to sexual touching. His language was emphatic and unequivocal. He used words such as “[a]bsolutely” and “[z]ero doubt” in connection with “[h]e’d be guilty of count three”. The surrounding circumstances reveal less certainty about the other charges, but they do not diminish the uncompromising language regarding the invitation to sexual touching. The prejudgment here in all the circumstances gives rise to a reasonable apprehension of bias.
Impermissible character assessment?
[85] K.J.M.J. refers again to the court’s comments that he had “[z]ero doubt” that K.J.M.J. invited a child to “do stuff to him”. The judge went on to say that K.J.M.J. had sexual deviance issues and not to argue with him because “I know I’m right”. The judge went on to say he had “no doubt” that K.J.M.J. had sexual deviance issues “[a]bsolutely”.
[90] Applying the Wewaykum test, an informed person keeping in mind the judge’s credibility findings that precede any argument and his commentary on K.J.M.J.’s character would reasonably conclude it more likely than not that the judge would not decide fairly.
The judge’s “cover up”?
[92] By retroactively saying that his comments were off the record and directing that they not be included in the transcript, the judge was undermining the open court principle which has constitutional foundation in the right to freedom of expression and the strong presumption that justice should proceed in public view. K.J.M.J. also insists the judge was frustrating the principle of appellate reviewability, critical to fairness in the criminal justice system, citing R. v. Farinacci (1993), 67 O.A.C. 197 at ¶24 and R. v. Sheppard, 2002 SCC 26 at ¶25, 28, and 46.
[95] Respectfully, for reasons already discussed, there is no reasonable basis for concluding that the judge’s comments were “off the record”. That a transcript was produced and the open court principle was not offended can be attributed to the diligence of the transcriptionist and the probity of Chief Crown counsel. As the judge makes plain in his remarks—and in his subsequent email to this Court—if it were up to him, we would know nothing of his improper comments or his efforts to suppress them.
[96] Again, applying the Wewaykum test, the following are highly disturbing errors by the judge:
• factually misstating that there was any agreement with counsel that his impugned remarks would be “off the record”;
• the legally groundless assertion of “privilege” over those comments;
• improperly attempting to exclude those comments from the record;
• the legally groundless assertion of non-waiver of “privilege”;
• the attempt to restrict access to the audio recordings; and
• the criticism and challenge of the Chief Crown Attorney’s decision that the transcript be produced,
which give rise to a reasonable apprehension of bias on the part of the trial judge.
[99] It is most unfortunate that the judge’s behaviour has resulted in much wasted time, expense and distress for all concerned. But for the foregoing reasons, the convictions should be set aside and a new trial ordered.
R v Moreira, 2023 ONCA 807
[December 6, 2023] Limits of Lay Opinion Evidence [Reasons by Thorburn J.A. with B. Zarnett and J. George JJ.A. concurring]
AUTHOR’S NOTE: Lay opinion evidence is permissible on a number of topics such as (i) the identification of handwriting, persons and things; (ii) apparent age; (iii) the bodily plight or condition of a person, including death and illness; (iv) the emotional state of a person e.g., whether distressed, angry, aggressive, affectionate or depressed; (v) the condition of things e.g., worn, shabby, used or new; (vi) certain questions of value; and (vii) estimates of speed and distance. However, there are limits. In this case, the limit examined was crossed when evidence tendered by lay witnesses to a beating expressed that they believed the amount of force was going to cause the person to die. At first, this evidence admitted as narrative was then used in closing by the Crown to undermine the mental intent defences of the accused. This was not permissible. All such opinion evidence must be subjected to an admissibility hearing that is based on the purpose for which it is sought. Moreover, this sort of evidence is likely inadmissible as the witnesses lacked the knowledge and experience to offer such an opinion and they were not examined on the prospect that they were engaging in after-the-fact reasoning.
[2] Smith and Moreira were charged with the first-degree murder of Noureddine under s. 235(1) of the Criminal Code, R.S.C. 1985, c. C-46, and the robbery of Conery under s. 343(c) of the Criminal Code. Cummins was also charged but his charges were severed from the Smith and Moreira indictment.
[3] At the outset of trial, Smith pleaded guilty to manslaughter. He testified that although he struck Noureddine several times, he did not intend or think his blows would kill Noureddine. He also pleaded guilty to assaulting Conery. Moreira pleaded guilty to the attempted robbery of Conery but said that although he watched Noureddine’s beating, he played no part in it.
[4] The pleas were not accepted and a trial by jury proceeded. Smith was convicted of the second-degree murder of Noureddine and of assaulting Conery, and Moreira was convicted of the manslaughter of Noureddine and the robbery of Conery.
[5] The appellants raise the following grounds of appeal of their convictions:
i. They claim the trial judge erred in (i) admitting testimony of lay witnesses about whether they thought Noureddine was likely to die from the attack as narrative and later allowing the Crown to use it as opinion evidence;
(2) Evidence of Witnesses to the Event
[12] Michael Bruton was outside St. Louis Bar and Grill, and described seeing three men kick, punch, and knee another man [Noureddine] in the face. The man was later taken to the hospital. On cross-examination, he was confronted with an earlier police statement where he said only one man kicked and kneed the man. Bruton testified that there were too many punches and kicks to count, and estimated that there were more than five kicks.
[13] Bruton testified that he ran across the street to intervene because “if someone didn’t do something like he [Noureddine] probably would have died, which we all know happened … it’s common sense if you punch or kick someone in the head … enough times.” He later repeated that, it was “my personal opinion it’s common sense if you hit somebody enough times in the head, they’re going to get seriously hurt or even result in death.”
[14] Alejandra Mihic was at the bar with Bruton. While outside, she heard someone say: “Do you have a fucking problem man?” She then saw a fight between two groups: one with three men, the other with two. She saw two men kicking another on the ground. She went inside to get the manager, and by the time she returned, the three men had left. Like Bruton, she testified that she went to get help because “it seemed like clearly … this guy’s [Noureddine’s] life was in danger.”
[18] Dr. Kristopher Cunningham was the pathologist who conducted the postmortem examination of Noureddine. He was qualified as an expert in forensic and cardiovascular pathology at the trial. He observed two bruises about 3-centimetres each, and abrasions on the right side of Noureddine’s head. Near his jaw and neck, there was a 6 x 5 ½-centimetre subcutaneous hemorrhage. On Noureddine’s left cheek, there was a bruising pattern, likely caused by his fall to the sidewalk. In total, Dr. Cunningham identified nine markings. He could not say if the injuries reflected separate blows, but said they were caused by some form of blunt force, such as a punch or a kick.
[19] Dr. Cunningham identified the cause of death as a fracture of the transverse process bone, which caused a rupture in the vertebral artery, leading to increased brain pressure and death. This injury could have been caused by a blow, fall, punch or kick. On cross-examination, he agreed that a minor force could break the transverse process, but that the area is well protected, such that greater force is required to distort the outer lying issues.
ANALYSIS OF THE GROUNDS OF APPEAL
(1) The First Ground of Appeal: Whether the Trial Judge Erred in Admitting Opinion Evidence from Lay Witnesses
[20] The appellants claim the trial judge erred in admitting opinion evidence from two lay witnesses who testified that they intervened in the attack on Noureddine because they thought he would likely die.
[21] During his examination-in-chief, Bruton testified that “if someone didn’t do something like he probably would have died … it’s common sense if you punch or kick someone in the head … enough times.” Defence counsel objected to Bruton giving his opinion. The trial judge dismissed the objection on the basis that the evidence was narrative, not opinion evidence. Mihic gave a similar opinion in her testimony, but no objection was raised.
[22] During the pre-charge conference however, the trial judge said that the statements were admissible as opinion evidence, stating: “Your client has said I don’t feel I hit him that hard. Well, if he can give his opinion, they can give theirs.”
[23] In her closing address to the jury, the Crown reminded the jury of the opinion evidence, saying, “[t]o Michael Bruton, Zack Noureddine was going to die if he did not step in and stop the beating” and “it was obvious to [the lay witnesses] that the force used on Zack was intended to cause him harm and that Zack Noureddine was going to be killed if the attack was not stopped.”
[24] In his jury charge, the trial judge also referred to this evidence, stating that “Ms. Mihic and Mr. Bruton said that they thought the victim might die as a result.” He instructed the jury to consider these opinions when determining whether Smith foresaw the likelihood of death.
[25] The appellants raise three issues with the lay opinion evidence.
[26] First, the appellants claim that if they had known the evidence would be admitted as opinion evidence, they would have sought a voir dire which would require the Crown to meet the preconditions to admissibility.
[27] Second, the appellants claim this evidence should not have been admitted as opinion evidence as the necessary preconditions for the admission of lay opinion evidence were not met as: (i) it was not necessary to enable the witnesses to accurately describe their observations, (ii) the witnesses lacked the “experiential capacity” to draw the inferences they did, and (iii) the witnesses were not in a better position to draw the inference than the members of the jury. As such, the risk of prejudice outweighed the probative value of the evidence.
[28] Third, the appellants claim the trial judge erred by failing to warn the jury about the risk of prejudice in after-the-fact reasoning (as the witnesses had given their opinion evidence knowing that Noureddine had died).
[30] The Crown claims that lay witnesses may express their opinion on the bodily plight or condition of a person and in any event, the opinion evidence was admissible as it was “a mere shorthand or convenient way to summarize the attack and explain, compendiously, what the witnesses observed”: R. v. Graat, [1982] 2 S.C.R. 819, at pp. 837-8
[31] In Graat, the Supreme Court of Canada enunciated a “helpfulness” standard, whereby lay opinion evidence can be received if the witness is providing a “compendious statement of facts” in circumstances where the witness “had an opportunity for personal observation … [and is] in a position to give the Court real help”: Graat, at pp. 836 and 840; Sopinka, Lederman and Bryant, The Law of Evidence in Canada, 5th ed. (LexisNexis, 2022), at § 12.02. Lay opinion evidence may assist witnesses to recount events more accurately than if the testimony were limited to factual observations, and it may remove the sometimes artificial distinction between fact and opinion in this context: Graat, at pp. 835-7 and R. v. H.B., 2016 ONCA 953, 345 C.C.C. (3d) 206, at paras. 69-70.
[32] The non-exhaustive list of subjects upon which witnesses can provide lay opinion evidence includes: (i) the identification of handwriting, persons and things; (ii) apparent age; (iii) the bodily plight or condition of a person, including death and illness; (iv) the emotional state of a person e.g., whether distressed, angry, aggressive, affectionate or depressed; (v) the condition of things e.g., worn, shabby, used or new; (vi) certain questions of value; and (vii) estimates of speed and distance: Graat, at p. 835.
[33] The court in Graat, at p. 835, provides a framework for the admission of lay opinion evidence:
Admissibility is determined, first, by asking whether the evidence sought to be admitted is relevant. This is a matter of applying logic and experience to the circumstances of the particular case. The question which must then be asked is whether, though probative, the evidence must be excluded by a clear ground of law or policy.
[34] Policy grounds include the danger of confusing issues, misleading the jury, unfair surprise, and undue consumption of time adducing the evidence: Graat, at p. 836.
[35] Lay opinion evidence about the apparent health of another person, including whether a witness believes the person to be dead when they approach him, falls within the “bodily plight” category and would therefore be admissible even when that opinion goes to the ultimate issue in the case: Graat, at pp. 836-7.
[36] In this case however, the lay opinion evidence was not evidence of the bodily plight of Noureddine; it was evidence that he would likely die from a certain application of force. This evidence was not simply summarizing observations; it was drawing an inference about the type of force likely to cause death. It should therefore have been subject to an analysis by the trial judge as to whether it was relevant and, if so, whether its probative value was outweighed by policy considerations: Graat, at p. 835.
[37] The trial judge has an important gatekeeping function to decide the allowable scope of opinion evidence. This court in R. v. Umeadi, 2023 ONCA 7, at para. 36, leave to appeal refused, [2023] S.C.C.A. No. 171, emphasized the importance of vetting issues of lay opinion evidence with the trial judge in advance to allow the trial judge “time to rule on the admissibility of the evidence and craft any instructions that are warranted in the circumstances of the case.” While this comment was directed toward the parties in that case, it highlights the important function that an admissibility hearing performs with respect to lay opinion evidence.
[38] In this case, the trial judge should have considered whether the witnesses had the knowledge and experience to offer such an opinion: Sopinka et al., at § 12.02. The trial judge also should have assessed the potential harm that could result from the opinion evidence. In particular, the trial judge should have considered the effect of the lay witnesses’ knowledge that Noureddine had in fact died of his injuries before they gave their testimony, and whether this created a risk of cognitive distortion by looking at the evidence through the lens of knowledge acquired after the fact.
[39] If the evidence passed the threshold, while it would have been appropriate to note that the proposition that they were engaging in after-the-fact reasoning was never put to the witnesses, the trial judge should have warned the jury that there was nonetheless a risk they were doing so, which could give rise to bias that could affect the ultimate weight given to it: R. v. Salmon (2012), 258 C.R.R. (2d) 219 (Ont. S.C.), at paras. 4-9. The failure to do so created a significant risk of prejudice in the deliberative process.
[40] The need for a hearing on the admissibility of this evidence is all the more important as the lay opinion in this case may well not be admissible.
[41] In R. v. J.F. (2006), 210 C.C.C. (3d) 405 (Ont. C.A.), at paras. 14-15, Weiler J.A. for the court held that a new trial was warranted after the complainants’ mother in a sexual assault trial said the appellant placed serious restrictions on the complainants (his step-daughters) and that this all made sense to her when her daughters told her they had been assaulted. Her opinion was that the restrictions were connected to the sexual abuse, which led her to believe her daughters. This court held that,
The mother was entitled to testify as to the restrictions the appellant had placed on the complainants and his conduct towards them. She was not, however, entitled to give her opinion as to the inference to be drawn from that conduct as this was the function of the triers of fact.
[42] Similarly, in R. v. Hayatibahar, 2022 ONSC 3692, a case arising out of a motor vehicle accident, the court excluded lay opinion evidence that related to injury causation. The Crown sought to rely on lay witness evidence that an abrasion on the accused’s left shoulder was a seatbelt rash, thereby identifying him as the driver of the car. The court refused, at para. 96, to allow the opinion evidence as to the cause of the injuries on the basis that, “[t]hey are being asked to look at an injury and offer their view on what caused that injury based on their experience with seeing other people with what are said to be similar injuries. The mechanics of injury causation are not, in my view, the proper subject for lay opinion.”
[43] The inference drawn by Bruton and Mihic in this case, is that the type of force used in the assault was likely to cause death. This inference goes directly to the issue central to Smith’s conviction: that is, whether Smith knew or ought to have known that Noureddine would likely die from the assault. Smith admitted that he killed Noureddine by punching and kicking him several times, and kneeing him while he was in a head lock; the only issue was whether he intended to kill Noureddine.
[44] While the Supreme Court of Canada in Graat, at pp. 836-7, found that a lay opinion going to the ultimate issue in a case was not necessarily inadmissible, these opinions continue to be treated with caution: Sopinka et al., at § 12.02; and David Watt, Watt’s Manual of Criminal Evidence (Proview, 2023), at § 30.01.
[45] Therefore, while the fact that the opinion went to the ultimate issue in this case may not have made the opinion inadmissible per se, it was incumbent on the trial judge to treat that opinion with caution and consider whether it met the test for admissibility set out in Graat.
[46] For the above reasons, I would allow this ground of appeal in respect of Smith. The appropriate path to determine admissibility was not followed. The appropriate remedy is to order a new trial for Smith on the murder charge, bearing in mind that Smith does not dispute that he killed Noureddine; the only issue is whether he intended to kill Noureddine.
R v MacAdam, 2024 ONCA 13
[January 10, 2024] Experts: Possession for the Purpose of Trafficking – Alternative Explanations [K. Feldman, B.W. Miller, S. Coroza JJ.A.]
AUTHOR’S NOTE: Possession cases are usually based on circumstantial evidence and the Villaroman test. This means all reasonable possibilities inconsistent with guilt must be excluded. Here, the possession for the purpose of trafficking expert agreed that some of the defence hypotheticals for personal use were possible (eg. a heavy cocaine user living in a remote location and using cocaine for pain alleviation). The trial judge reversed the onus by requiring evidence to substantiate the hypotheticals. Since a reasonable doubt can arise from a lack of evidence, such reasonable possibilities are sufficient in an of themselves to establish a reasonable doubt.
[1] A house in Nipigon was under police surveillance as part of an investigation into a suspected drug dealer. The appellant attended at the house for a few minutes. Police followed him as he left and drove his truck to a nearby Tim Hortons. He went into the Tim Hortons for about 10 minutes, then returned to his truck. Police then approached him, told him he was being placed under investigative detention, and read his rights. The appellant was told he was under investigation for possession of controlled substances for the purposes of trafficking.
[2] The appellant told the police he had “a couple of ounces” of cocaine in the console of his truck, but it was for personal use. When the truck was searched incidental to arrest, police found 112 grams of cocaine, which is approximately 4.2 ounces. Beyond the quantity of drugs seized, there were no indicia of trafficking present, such as debt lists, scales, or multiple cell phones. Neither was there any surveillance of the appellant engaging in suspicious behaviour consistent with drug trafficking.
[3] The appellant was convicted of possession for the purpose of trafficking….
[5] We agree, however, with the appellant’s second ground of appeal. The case that the appellant was trafficking was based entirely on the quantity of drugs found in his possession. The police expert witness testified in chief that the amount was consistent with trafficking. His evidence was that a cocaine user could be expected to use between 1 and 3 grams of cocaine a day. On cross-examination, however, the defence put several hypotheticals to the expert, some of which were more factually complicated than others. One hypothetical involved a heavy cocaine user living in a remote location and using cocaine for the purpose of alleviation of pain. Another involved a heavy user living in a remote location. The expert agreed that, in these two scenarios, the quantity seized, which would equate to just over a month’s supply, could be consistent with personal use.
[6] The trial judge did not find that the expert’s agreement to the hypothetical raised a reasonable doubt that the appellant was trafficking. The trial judge explained that aside from living in a remote area, none of the key facts for the opinion – that the appellant was a heavy cocaine user, that he suffered from severe pain, that he had a good relationship with a seller willing to supply in bulk, and that he had an income capable of supporting significant drug use – were in evidence. Accordingly, he attached no significance to the expert’s evidence in this regard and found the appellant guilty.
[7] We agree with the appellant that the trial judge erred in finding that the Crown had discharged its burden of proof in this case. The evidence that the appellant was engaged in trafficking was thin – it consisted only in his possession of 4.2 ounces of cocaine and was unsupported by any other evidence. Although the trial judge made no error in finding that many of the facts underpinning some of the hypotheticals were not in evidence, the trial judge had to grapple with the expert’s agreement that the simplified hypothetical was consistent with possession for personal use.
[8] The expert’s testimony laid the foundation for a reasonable possibility inconsistent with guilt. Instead of explaining why the Crown had proven possession for the purpose of trafficking beyond a reasonable doubt when its own expert had conceded another reasonable possibility, the trial judge required the defence to establish the hypothetical scenario with proven facts. However, in circumstantial cases, inferences inconsistent with guilt do not have to be based on proven facts but must be based on logic and experience applied to the evidence or the absence of evidence, not on speculation: see R. v. Villaroman, 2016 SCC 33 at para. 37. While the Crown did not have to negative every possible conjecture, it had to negative the opinion put in play by the expert.
[9] In our view, the meagre evidence connecting the appellant with trafficking, coupled with the expert’s statement that the amount could be consistent with the personal use of a heavy user living in a remote area without ready access to dealers, ought to have raised a reasonable doubt as to trafficking.
DISPOSITION
[10] Accordingly, the conviction is quashed and a conviction for simple possession is substituted….
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