Dated: 20020917 2002 SKCA 102 Docket: 447 THE COURT OF APPEAL FOR SASKATCHEWAN Coram: Gerwing, Sherstobitoff Lane JJ.A. HER MAJESTY THE QUEEN and CORY MICHAEL HERZBERG COUNSEL: Anthony B. Gerein for the Crown William A. Selnes for the Respondent DISPOSITION: On Appeal From: QBG of 2002, J.C. of Regina Appeal Heard: September 17, 2002 Appeal Allowed: September 17, 2002 (orally) Reasons By: The Honourable Mr. Justice Sherstobitoff In Concurrence: The Honourable Madam Justice Gerwing The Honourable Mr. Justice Lane SHERSTOBITOFF J.A. (orally) [1] This appeal is from an order made by a Queen’s Bench judge prohibiting McMurtry P.C.J. from continuing as trial judge in respect of criminal charges against the respondent Herzberg. [2] Herzberg was charged with impaired driving, driving with a blood-alcohol level exceeding .08, and dangerous driving. He moved for stay of proceedings on the ground that the Crown had failed to provide adequate disclosure. In response, the Crown filed an affidavit to show that disclosure had been made. The affidavit had appended as exhibits the items disclosed, among them, copy of the criminal record of Mr. Herzberg. The application was dismissed. [3] At the opening of the trial, the defence applied for stay on the ground of perception of bias on the part of the judge because the respondent’s criminal record was before her. She dismissed the application, noting first that she had not read the criminal record, and secondly that trial judges often are necessarily made aware of evidence that is both incriminating and inadmissible and are nevertheless required to continue with the proceedings on the basis that the inadmissible evidence cannot be taken into account in reaching verdict. [4] The respondent then applied to the Queen’s Bench for an order of prohibition. The order was granted on the following reasoning: Counsel for Mr. Herzberg contends that an accused’s criminal record cannot be put into evidence unless the accused takes the stand. Crown counsel contends that the trial had not commenced as no evidence had been called and therefore it could not be said the criminal record was put into evidence at trial. Once Judge McMurtry heard argument in respect to the Charter applications, which she did on October 11, 2001, in my view the trial had commenced. Even though Judge McMurtry had not read the criminal record she was aware of its existence as her decision dated December 17, 2001, indicated. The case law indicates, in my opinion, the existence of criminal record should not be made to trial judge unless the accused is called as witness. The Crown was at fault in this case by filing the criminal record in the affidavit. In my opinion, the Crown did not have to disclose to the trial judge any indication of criminal record. [5] The appeal must be allowed. There is abundant authority that disclosure of an accused’s criminal record to the court, whether composed of judge and jury or jury alone, does not amount to an automatic disqualification of the court on the ground of apprehended bias, appearance of bias or other prejudice to the accused. [6] The judgment of Matheson J. in R. v. Peters (1991), 1991 CanLII 7670 (SK QB), 96 Sask. R. 177, is almost directly on point. In that case, Crown witness inadvertently disclosed that the accused had criminal record by stating that he had served notice to seek greater penalty by reason of prior conviction. After considering relevant authorities, the judge said at pp. 182-83: [28] Judges of facts, whether they be juries or judges sitting alone, have sworn duty to base their conclusions solely on the admissible evidence which has been adduced during the course of the trial. Quite often evidence is adduced which must be ignored. The evidence may be irrelevant. Conversely, it may be relevant and of probative value but may be deemed inadmissible because its prejudicial value to the accused outweighs its probative value. In those instances, the evidence, or at least the nature thereof, will likely have been disclosed to the trier of fact. If the trier is jury, clear instructions will be delivered to ignore the inadmissible evidence. If the trial judge considers that the inadmissible evidence may nevertheless unduly influence the judgment of the jury, he may exercise his discretion and declare mistrial. It does not appear, however, that he possesses discretion to dismiss the indictment. [29] Trials of charges contained in informations are not, of course, conducted before judge and jury. By analogy, however, if inadvertent evidence should be adduced before judge, and he considers that he will be unable to ignore such evidence when making his final decision, the proper course would be to declare mistrial: Attorney General of Quebec v. Bissonnette, supra [(1980), 17 C.R. 26]. To equate an irregularity to statutory prohibition would seem to be an unwarranted extension of the intention of Parliament. [30] Very often trial judges are required to determine the admissibility of evidence which may be highly damaging to the accused, such as statements by the accused, or intercepted communications. The evidence, if admitted, may be very significant factor in the determination of the guilt or innocence of the accused. Generally speaking, it is necessary for the trial judge to hear good deal about the evidence before decision can be made as to its admissibility. Even although the exact statement alleged to have been made by the accused may not be revealed, it may be properly inferred that there would be no attempt to introduce it into evidence unless it tended to establish the guilt of the accused. [34] The court concluded, in Corbett, supra [1988 CanLII 80 (SCC), [1988] S.C.R. 670], that s. 12 of the Canada Evidence Act did not violate the right, guaranteed by ss. 11(d) of the Charter to any other person charged with an offence, to be presumed innocent until proven guilty according to law in fair and public hearing by an independent and impartial tribunal. That conclusion was reached notwithstanding an acknowledgement that the jury, even although properly instructed, might use the evidence of prior convictions for an improper purpose. An overriding faith in the jury system was clearly manifested by the court, assuming that juries should be properly instructed as to the limited use which may be made of evidence that the accused was previously convicted of criminal offences. [35] If jury is deemed capable of assimilating proper instructions regarding evidence of prior convictions, one must assume that trial judges fully comprehend those instructions. [36] The evidence complained of was inadvertently introduced. If inadvertent errors should automatically result in termination of the proceedings, then more egregious, and perhaps deliberate, errors on the part of the Crown, or its witnesses, would necessitate no less result. standard of perfection would then be required of the Crown, standard which humans are quite incapable of achieving. [37] Every individual charged with criminal offence is guaranteed the right to be presumed innocent until proven guilty according to law in fair and public hearing by an independent and impartial tribunal. Although it is the responsibility of the presiding judge to ensure fair hearing, there is no law which guarantees that inadvertent, inadmissible evidence will not be introduced. If an error of that nature should occur, the error should be ignored, or, if it is deemed too significant to be ignored, mistrial should be declared, permitting new hearing which will contain no record of the inadvertent error. If that is the proper procedure, it necessarily follows that the accused's rights, as guaranteed by the Charter are not violated when the inadvertent error occurs. [7] In this case, when the matter was raised with the trial judge, she said that she had not read the record, that she was not biased as a result of the information tendered at the pre-trial proceedings, and that the record was something she could put out of her mind as she did in all instances where she ruled evidence inadmissible. In these circumstances she was correct to dismiss the application for a stay and to decline to recuse herself. [8] The appeal is allowed, the order for prohibition is quashed, and the matter is remitted to the Provincial Court for trial.
The accused applied for a stay of proceedings on the ground the Crown failed to provide adequate disclosure. In making disclosure, the Crown appended a copy of the respondent's criminal record to its affidavit. The defence then applied for a stay on the ground of perception of bias on the part of the Provincial Court judge because the respondent's criminal record was before her. The Crown appealed the order which prohibited the judge from continuing as trial judge in respect to the respondent's criminal charges of impaired driving, driving with blood alcohol levels exceeding .08, and dangerous driving. HELD: The appeal was allowed. The order for prohibition was quashed and the matter was remitted to the Provincial Court for trial. There is abundant authority that disclosure of an accused's criminal record to the court alone does not amount to an automatic disqualification of the court on the ground of apprehended bias, appearance of bias or other prejudice to the accused. The judgment in R. v. Peters is almost directly on point. The judge in this case said she had not read the record, she was not biased as a result of the information tendered at the pre-trial proceedings and the record was something she could put out of her mind as she did in all instances where she ruled evidence inadmissible. She was correct in these circumstances to dismiss the application for a stay and to decline to recluse herself.