J. THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2010 SKCA 58 Date: 20100413 Between: Docket: 1755 Her Majesty the Queen and Taryn Lynden Rathgeber Coram: Vancise, Lane and Richards JJ.A. Counsel: Todd G. Parlee for the Appellant Dean Sinclair for the Crown Appeal: From: Q.B. No. 307 of 2009 J.C. of Prince Albert Heard: April 13, 2010 Disposition: Dismissed (Orally) Written Reasons: April 21, 2010 By: The Honourable Mr. Justice Richards In Concurrence: The Honourable Mr. Justice Vancise The Honourable Mr. Justice Lane Richards J.A. I. Introduction [1] The appellant, Taryn Rathgeber, was charged on a four count information in connection with an alleged impaired driving incident. He contended the information was nullity because it contravened s. 789(2) of the Criminal Code. The Provincial Court trial judge severed the count which was the source of the difficulty. Mr. Rathgeber then sought an order from the Court of Queen’s Bench quashing the trial proceedings. That application was dismissed and Mr. Rathgeber appealed to this Court. We dismissed his appeal with oral reasons following argument. [2] On November 26, 2008 Mr. Rathgeber was charged with four offences on information 24292894. The offences were impaired driving, fail to comply with breath demand, obstruction of peace officer and operating motor vehicle while disqualified. The latter count specified that he was disqualified “by reason of an order pursuant to ss. 253 and 254 of the Criminal Code.” The text of the information is set out below: Charge No. ...while his ability to operate motor vehicle was impaired by alcohol or drug did operate motor vehicle contrary to Section 253(1)(a) of the Criminal Code; and further Chg. #2 Charge No. without reasonable excuse, fail or refuse to comply with demand made to him by peace officer under subs3ection (sic) 254(2) of the Criminal Code to provide forthwith sample of his breath as in the opinion of Constable Michel FORGET was necessary to enable proper analysis of his breath to be made by means of an approved screening device contrary to Section 254(5) of the Criminal Code; and further Chg. #3 Charge No. did wilfully obstruct Cst. M. FORGET peace officer to wit: engaged in the execution of his duty by giving false surname contrary to Section 129(a) of the Criminal Code; and further Chg. #4 Charge No. did operate motor vehicle while disqualified from doing so by reason of an order pursuant to Section 253 and 254 of the Criminal Code contrary to Section 259(4) of the Criminal Code. [3] On November 27, 2008, Mr. Rathgeber pled not guilty to each of these offences. At that time his trial counsel, Mr. Kapoor, advised the court that he wanted to preserve his right to object to the form of the information after plea. He did not specify the nature of the objection although he did say that he might make an application to have the information “struck out” or that he might make an application for severance. [4] The trial was scheduled for April 9, 2009. On that date, Mr. Kapoor made an application for an order quashing the information as being nullity. He contended it was drafted so as to violate s. 664 of the Code. The applicable provision was actually s. 789(2). (2) No information in respect of an offence for which, by reason of previous convictions, greater punishment may be imposed shall contain any reference to previous convictions. [5] In the course of argument, the trial judge said he did not understand why the defect, if there was one, could not be cured by severing count 4, the charge concerning the driving while disqualified offence. Mr. Kapoor’s response was less than clear. At first, he said the severance would not be sufficient to remedy the defect. Subsequently, he said that whether or not it could be severed was up to the judge. He then argued against severance on the grounds that it would be too costly to run trials on different days. He later repeated his opposition to severance order but then again proposed to leave the decision to the trial judge. [6] The prosecutor advised the court that he had received no notice of the application. He also indicated that one of the Crown’s witnesses was moving out of province and for that reason the trial should proceed without further delay. He opposed the application to quash the information. [7] The trial judge then dismissed the application to quash. He held that the defect could be addressed in one of two ways and said the drive while disqualified charge could be amended to strike out the words “by reason of an order pursuant to Section 253 and 254 of the Criminal Code.” Alternatively, he said the defect could be cured if that count was severed. The trial judge advised that he was satisfied he could fairly try Mr. Rathgeber even with knowledge that he had or might have criminal record. [8] Mr. Kapoor immediately indicated that he wanted an adjournment so that he could apply for certiorari. This was opposed by the prosecutor. The judge compromised by holding that he would hear the Crown’s evidence and then adjourn the trial. With that, Mr. Kapoor made an application to sever the drive while disqualified charge. The prosecutor consented to the application and the judge made the order. [9] The judge then stated that he was ready to begin the trial on the impaired driving, refusal and obstruction charges. Mr. Kapoor objected again. He said it would be improper for the judge to preside at trial on those charges but that it would not be improper for him to hear the trial on the drive while disqualified charge. The judge proceeded with the trial as he had earlier proposed. [10] The prosecutor called evidence and closed his case on the impaired, refusal and obstruction charges. The trial was then adjourned so that Mr. Kapoor could take issue with the ruling on the application to quash. He ultimately filed notice of motion returnable in the Court of Queen’s Bench for an order to quash the information or prohibit the trial judge from proceeding on it. [11] Mr. Kapoor’s primary argument in the Court of Queen’s Bench was that the information was nullity and should have been quashed. The Chambers judge disagreed. He said the defect in relation to s. 789(2) of the Code could have been cured by way of amendment or severance. He also held that the trial judge did not err either by failing to recuse himself or by hearing evidence on the impaired driving, refusal and obstruction charges. [12] The Crown acknowledges that, as originally drafted, the information in this case ran afoul of s. 789(2) of the Code. This concession is proper one. [13] In this Court, Mr. Rathgeber did not pursue his argument that the information was nullity which should have been quashed in its entirety. Rather, he contended that, after recognizing a problem in relation to s. 789(2) of the Code and severing count 4 of the information, the trial judge should have dealt only with that count. More specifically, Mr. Rathgeber contended that an apprehension of bias arose when the judge elected to proceed on the first three counts, i.e. the charges concerning impaired driving, refusing a breath demand and obstruction. This was said to be the case because the judge had learned of previous conviction in the course of severing the drive while disqualified count. [14] The test for apprehension of bias is well settled. The leading case in the criminal context is R. v. S.(R.D.), 1997 CanLII 324 (SCC), [1997] S.C.R. 484, 151 D.L.R. (4th) 193. Cory J. adopted the following statement of principle from de Grandpre J.’s often-cited judgment in Committee for Justice and Liberty v. Canada (National Energy Board), 1976 CanLII (SCC), [1978] S.C.R. 369 at p. 394: …the apprehension of bias must be reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information…[the] test is “what would an informed person, viewing the matter realistically and practically and having thought the matter through conclude. [15] In our opinion, Mr. Rathgeber’s argument cannot succeed. We are in general agreement with the decision of the Chambers judge. In dealing with count 4, the trial judge learned only of the Crown’s allegation that Mr. Rathgeber had driven while disqualified pursuant to ss. 253 and 254 of the Code. This was not enough to give rise to reasonable apprehension of bias. [16] It is inevitable that accused persons will appear before judges who know of their criminal histories. The community rightly trusts that such information will play no part in judicial decision making. Accordingly, at least in the normal course, mere knowledge of an accused’s criminal record does not automatically disqualify judge from presiding at trial. See: R. v. Moosomin, 2008 SKCA 168 (CanLII), 239 C.C.C. (3d) 326 at paras. 16-20; R. v. J. (D.B.), 2000 BCCA 616 (CanLII), 149 C.C.C. (3d) 534 at para. 19; R. v. Dorscheid (1991), 116 A.R. 79 (Alta. C.A.). [17] We are not persuaded by the argument advanced on behalf of Mr. Rathgeber. No reasonable apprehension of bias arose by virtue of the trial judge’s decision to proceed in relation to the first three counts in the information. Conclusion [18] Mr. Rathgeber’s appeal must be dismissed. This matter is remitted to the trial judge in order that the case can be concluded.
The appellant was charged on a four count information in connection with an alleged impaired driving incident. He contended the information was a nullity because it contravened s. 789(2) of the Criminal Code. The Provincial Court trial judge severed the count which was the source of the difficulty. The appellant then sought an order from the Court of Queen's Bench quashing the trial proceedings. That application was dismissed and the appellant appealed to this Court. At trial, the appellant made an application for an order quashing the information as being a nullity. He contended it was drafted so as to violate the Code s. 789(2) of which states: 'No information in respect of an offence for which, by reason of previous convictions, a greater punishment may be imposed shall contain any reference to previous convictions.' The trial judge dismissed the application to quash. He held that the defect could be addressed in one of two ways: The drive while disqualified charge could be amended to strike out the words 'by reason of an order pursuant to Section 253 and 254 of the Criminal Code.' Alternatively, he said the defect could be cured if that count was severed. The trial judge advised that he was satisfied he could fairly try the appellant even with knowledge that he had or might have a criminal record. The appellant's application for a writ of certiorari quashing the information was dismissed by the Court of Queen's Bench. In this Court, the appellant did not pursue his argument that the information was a nullity which should have been quashed in its entirety. Rather, he contended that, after recognizing a problem in relation to s. 789(2) of the Code and severing count 4 of the information, the trial judge should have dealt only with that count. More specifically, the appellants contended that an apprehension of bias arose when the judge elected to proceed on the first three counts, i.e. the charges concerning impaired driving, refusing a breath demand and obstruction. This was said to be the case because the judge had learned of a previous conviction in the course of severing the drive while disqualified count. HELD: The appeal is dismissed. The test for apprehension of bias is well settled. The leading case in the criminal context is R. v. S.(R.D.). The test is: what would an informed person, viewing the matter realistically and practically Ã» and having thought the matter through Ã» conclude. It is inevitable that accused persons will appear before judges who know of their criminal histories. The community rightly trusts that such information will play no part in judicial decision making. Accordingly, at least in the normal course, mere knowledge of an accused's criminal record does not automatically disqualify a judge from presiding at a trial. No reasonable apprehension of bias arose by virtue of the trial judge's decision to proceed in relation to the first three counts in the information.