IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           This is an application by defence counsel for me to recuse myself from the sentencing hearing in the case of R v. Jeremy Melvin Carlson aka Rhiley Melvin Carlson.  Accordingly I must determine if a reasonable, right minded person armed with all of the relevant information would consider it more likely than not that I would, consciously or unconsciously, unfairly decide the matter.  For the reasons stated below, I refuse to recuse myself.

[2]           On November 17^th, 2017, the offender pled guilty to sexual interference against a young person, AA, between Dec 1^st, 2015 and Sept 5^th, 2016.  A pre-sentence report and psychiatric report were ordered and the sentencing hearing was scheduled for a full day. On April 30^th, 2018, the sentencing hearing commenced before me. Crown and defence filed a significant volume of materials and case law on which they intended to rely. By my rough estimate there were approximately 400 pages.  I advised counsel at the outset that I had just received the materials that morning and had begun reviewing them but had not yet finished. I asked counsel to keep that in mind when making their submissions.

[3]           Near the end of the day, just before 4 p.m., defence counsel advised she wanted to apply to have me recuse myself due to apprehension of bias. Crown had not received notice of the application. There would have been insufficient court time that day to hear the application, for the Crown to prepare its reply or for the court to provide its decision so an adjournment was required.  I directed both counsel the application would be made in writing and enquired how much time was required for each counsel to file its written materials.  I canvassed counsel’s availability and set deadlines. I directed counsel appear in from of the judicial case manager on May 31st to schedule the date to receive my recusal decision. I obtained a transcript and reviewed the audio recording. There was no difficulty in hearing what was said. The transcript is some 70 pages long and other than a few minor inaudible notations, it is complete. The transcript is certified as being accurate by the official court transcriptionist.  Because I knew both counsel were located out of town, I directed the registry to make an audio disc available to both counsel for ease of review.

[4]           In her written argument defence counsel requested a further oral hearing despite my earlier clear directions. There were some difficulties and delays in scheduling the matter. Following this I learned defence counsel had renewed its request for further oral argument to the judicial case manager.  The judicial case manager contacted me to seek direction. I then directed the matter be scheduled for 2 hours to permit both counsel to make 1 hour of oral submissions on August 1^st, 2018, which they did.

[5]           The defence argument for recusal may be summarized as follows: defence alleges there is a reasonable apprehension of bias based on the cumulative effect of several issues including the following:

[6]           Defence relied on the Affidavit of Jennifer Walker, a legal assistant who was not present for the sentencing but who listened to the DARS audio recording. Ms. Walker offered her opinion regarding the quality of audio recording and the court’s tone and demeanour and speculated about the court’s intention and motivation in its communication with defence. Defence also filed the Affidavit of Paula Houle, the aunt of the offender. Ms. Houle was present during the sentencing hearing. Ms. Houle offered her lay opinion regarding the appropriateness of judicial questioning and expressed other criticism of the Court’s conduct. Ms. Houle drew conclusions based on her perception of the sentencing process. Attached to Ms. Houle’s affidavit were several published media articles regarding the sentencing. Both affidavits offered the affiant’s opinions and drew conclusions on how defence counsel must have felt.  

[7]           The Crown opposes the defence application for recusal. The Crown disputes the majority of the “facts” alleged by defence as misleading and inaccurate. In the written and oral arguments Crown asserted, inter alia: 

[8]           It is well settled law that the applicant has the onus of proof to establish a reasonable apprehension of bias in order to succeed in an application for a judge to recuse herself. R v RDS 1997 CanLII 324 (SCC), 1997 3 SCR 484.

[9]           The test for judicial bias was originally formulated by the Supreme Court of Canada in Committee for Justice and Liberty v National Energy Board 1976 CanLII 2 (SCC), 1978 1 SCR  369:

[10]        The Supreme Court of Canada explained in RDS the test for judicial bias had evolved since the Liberty case: 

[11]        In the case of  Taylor Ventures Ltd v Taylor [2005] BCCA 350, the BC Court of Appeal provided judges with a very useful summary of the principles governing recusal, as follows:

[12]        In R v Maharaj 2001 OJ No. 2005, Justice Watt distinguished the everyday meaning of bias from the meaning of bias in the legal context. The everyday meaning describes “a leaning, inclination or bent”. For legal purposes “bias” represents something more serious: a predisposition to decide an issue or cause in a certain way, which does not leave the judicial mind perfectly open to persuasion or conviction.”  The mere allegation, even a demonstrated possibility of actual or apprehended bias is not enough to disqualify the court from deciding. Something more is required.

[13]        In the RDS case, the Supreme Court of Canada explained what “more” was required. The applicant must present “cogent evidence” that demonstrates that something the judge has done gives a reasonable apprehension of bias. Comments made by the judge or behaviours displayed must not be viewed in isolation, but rather must be considered in the overall context of the hearing.  The Supreme Court of Canada  went on to state that allegations of perceived bias will generally not succeed unless the impugned conduct, taken in context, truly demonstrates a sound basis for perceiving that a particular determination has been made on the basis of prejudice or generalizations.  

[14]        The test for bias is an objective test and is not based on the subjective views of the litigant or his counsel. It focuses on the perception of a reasonable person apprised of all the circumstances. The Supreme Court of Canada cautioned that “Counsel who appear in criminal courts, whether prosecuting or defending have to be robust. They must be prepared to take the knocks and misfortunes of advocacy. One of the things with which counsel must learn to cope is the judge who is not being entirely fair to them.”

[15]        Similarly I note the comments of Southin, J.A., as she then was, in the BC Court of Appeal case of Middlecamp v. Fraser Valley Real Estate Board 1993 CanLII 2884 (BC CA), [1993] BCJ 1846, at para 11:

[16]        In R v. RDS, the Supreme Court of Canada made it clear that bias is a very serious allegation and that finding is not to be entered into lightly :

[17]        On the issue of the social context of judging and whether judges should ever show emotion and whether doing so illustrates the judge’s bias, the Supreme Court of Canada said this in RDS:

[18]        In R v Churchill 2016 NLCA 29, the Newfoundland and Labrador Court of Appeal addressed the apprehension of bias in the context of a trial judge’s interventionist approach and judicial questioning. In doing so it referred to the Ontario Court of Appeal decision in R v Chippewas of Mnjikaning First Nation v Chiefs of Ontario 2010 ONCA 47:

[19]        Applying these well settled legal principles to the present case I cannot accept the defence’s contention that there is a reasonable apprehension of bias in the context of this sentencing hearing.

[20]      At the outset, the analysis must consider there is a presumption that judges will act according to their oath of office. The presumption can be displaced with cogent evidence that demonstrates that something that the judge has done gives a reasonable apprehension of bias. No such cogent objective and reliable evidence was proffered by defence in this case.

[21]        It is also important to note that I am to decide this issue on the basis of admissible evidence. It is trite to say that the submissions of counsel are not evidence. Counsel is an advocate for her client and is not entitled to give evidence in a manner for which she is acting as counsel.

[22]        I must apply the law to the facts. The only evidence offered by the defence on the recusal application were two affidavits of Ms. Houle and Ms. Walker, and of course I am to consider the official transcript and the official DARS audio recording.

[23]        I agree with Crown’s submission that the bulk of the allegations made by defence are simply not accurate, when one compares them against the transcript and the audio recording. I do not purport to engage in a line by line accounting of the inaccuracies. The record both in the form of the transcript and DARS will speak for itself.

[24]        On the issue of the Court’s empathetic response to the victim impact statement, this was perhaps overstated and sensationalized. The Supreme Court of Canada and the Canadian Judicial Council, Commentaries on Judicial Conduct both agree that judges are human, they are not expected to be robots. There is therefore nothing wrong with the Court showing emotion. Just because a judge demonstrates human compassion, it does not amount to judicial bias.

[25]        Both the affidavits tendered were replete with inappropriate opinion, speculation and conjecture. I agree with the Crown characterization by the Crown that much of the affidavits are simply a summary of defence counsel’s argument put in the mouth of a lay civilian affiant.  Neither affiant can be considered an “objective, reasonable right minded informed person with knowledge of all the relevant circumstances including the traditions and impartiality that form the background and apprised also of the fact that impartiality is one of the duties that judges swear to uphold, and aware of the social reality that forms the background of a particular case” as the case law requires.

[26]        Both of the affidavits speculated on how the defence counsel “must have been feeling” in response to the perceived inappropriate conduct by the Court. The affiants speculated on how members of the gallery and members of the media “must have been feeling”. Moreover, the affidavits went even further by speculating as to what “must have been in the Court’s mind” and as to the Court’s rationale for saying certain things and for the Court’s actions.  A close review of the transcript and the DARS recording confirms that this speculation was both factually unfounded and inappropriate.

[27]        Neither of these affiants can be described as an “informed person, with the knowledge of all the relevant circumstances, including the traditions and impartiality that form a part of the background and apprised also of the fact that impartiality is one of the duties that judges swear to uphold.”  The affidavits illustrate that the authors do not have the appropriate or requisite experience in criminal courts to understand that it is a natural and appropriate part of the advocacy process for the Court to engage with both Crown and defence counsel, asking questions, seeking clarification, testing the submissions of counsel and having counsel explain and defend their position. It is also quite appropriate, and indeed expected, for the Court to control its own process by determining how and when legal arguments will be made, set timeframes and to determine whether arguments will be oral or written.

[28]        In summary, there is no reliable evidentiary foundation to support a reasonable apprehension of bias from the perspective of an informed reasonable and right minded person who is fully apprised of the facts. The application for recusal is therefore dismissed.