J. 1994 S. H. No. 112402 IN THE SUPREME COURT OF NOVA SCOTIA BETWEEN: HER MAJESTY THE QUEEN RESPONDENT Revised Decision: The text of the original decision has been revised to remove personal identifying information of the parties on August 18, 2008. PLACE HEARD: At Halifax, Nova Scotia, before the Honourable Chief Justice Glube DATE HEARD: April 18th, 1995 DECISION: April 18th, 1995 (orally, at conclusion) WRITTEN RELEASE OF ORAL DECISION: April 20th, 1995 COUNSEL: Adrian C. Reid, Q.C., for the appellant Burnley A. Jones and Christine Driscoll, for the respondent TO PUBLISHERS OF THIS CASE: PLEASE TAKE NOTE that s. 38(1) of the Young Offenders Act applies and this decision may require editing before publication. Section 38(1) provides: "38(1) Subject to this section, no person shall publish by any means any report (a) of an offence committed or alleged to have been committed by young person, unless an order has been made under section 16 with respect thereto; or (b) of any hearing, adjudication, disposition or appeal concerning young person who committed or is alleged to have commited an offence in which the name of the young person, child or young person who is victim of the offence or child or young person who appeared as witness in connection with the offence, or in which any information serving to identify the young person or child, is disclosed." FURTHER NOTE there is ban on publication of the original Youth Court decision dated December 7th, 1994; as well as any portion of this decision which quotes directly from said decision. GLUBE, C.J.: (Orally) want to thank counsel for providing their material in advance and would indicate that have listened very carefully to what has been said this morning and it, for the most part, echoes what is in the briefs already. have had the opportunity, as said, of reading them and of reaching decision on this matter and I'd like to give it now. On November 10th, 1993, R.D.S was charged with three counts under the Criminal Code. The first, unlawful assault against peace officer engaged in the execution of his duty, contrary to s. 270(1)(a); the second, unlawful assault against the same peace officer, with intent to prevent the peace officer from lawfully arresting N.R., contrary to s. 270(1)(b); and the third, unlawfully resisting the same peace officer who was engaged in the lawful execution of his duty, contrary to s. 129(a). After appearing in Youth Court December 7th, 1993 and entering not guilty plea, and after numerous appearances in Youth Court, all resulting in adjournments, R.D.S. was finally tried on December 2nd, 1994, and following an oral decision on that date, was acquitted on all charges. On December 22nd, 1994 the Crown filed notice of appeal; on January 13th, 1994 the Learned Trial Judge filed Supplementary Reasons. Only two persons were called as witnesses at the trial before the Learned Trial Judge, namely: Constable Donald Stienburg, the peace officer named in the indictment, and the defendant, R.D.S. Although the facts have been set out in detail by both sides and have been presented here this morning as well in detail, do not propose to repeat them here. have read the transcript and the summaries provided by both counsel, as well as the briefs of both counsel. The appellant refers to both the reasons given orally at the conclusion of the case, as well as the document entitled "Supplementary Reasons" filed after the notice of appeal. The appellant sets out the grounds of appeal as follows: "1. THAT the Learned Youth Court Judge based her decision on considerations which were not supported in the evidence. 2. THAT the Learned Provincial Court Judge made findings of credibility based on considerations which are not based upon or supported by the evidence. 3. THAT the Learned Youth Court Judge erred in ruling certain relevant and probative evidence to be inadmissible in particular statements made by the Respondent at the time of the commission of the offence." Grounds one and two were argued together by the Crown. On the first two grounds the Crown submits the issuing of Supplementary Reasons following the filing of an appeal was inappropriate. am of the view that the Supplementary Reasons are not the proper basis for deciding this appeal. In my respectful opinion, the decision was made on December 2nd, 1994 and the Supplementary Reasons did not form the basis of the Crown's appeal. Although judge is not obliged to advise counsel they will receive additional reasons, it would be usual for judge to say something, either at the conclusion of the case and the oral reasons or very soon after that time. Although another issue intervened in this case relating to request from the press, there was no advice that further reasons on the actual decision would be forthcoming. They were not received until after the notice of appeal, and suggest the filing of those reasons was not practice that judge should follow. do not propose to consider the elaborated reasons in rendering this decision. Both parties this morning have agreed that the judge was functus at this time, as she had made decision. But would like to make some further comments because my research, as said, this past weekend did lead me to perhaps confirm that position which had come to without doing any further research. The release of the Supplementary Reasons by the Learned Trial Judge caused me some concern, and after writing the above, tried to research the issue but was unable to find any specific cases directly on point, except cases which fall under the provisions of s. 682(1) of the Criminal Code. believe they are analogous to the present situation and therefore may apply. R. v. A.W.E., [1993] S.C.R. 158 dealt with the gratuitous report sent to Court of Appeal by trial judge purporting to be under the provisions of section 682(1) of the Criminal Code. (The section deals with reports to the Court of Appeal.) At the present time, reports are only to be made upon request by the Appeal Court. At p. 173 of the decision, Lamer C.J.C. states: It is well established that trial judge, in furnishing the Court of Appeal with report, must be vigilant to avoid simply expanding upon reasons or rulings previously given or providing reasons where none were given at trial. In such circumstances, trial judge's report will be held invalid..." Some years earlier, in the case of R. v. Hawke, 1975 CanLII 672 (ON CA), 22 C.C.C. (2d) 19 at p. 53, case in which again no report was requested, after discussing the Criminal Code section on reports, Dubin J.A. (as he then was) states at p. 53: In the case at bar, it would not be unreasonable for the accused to feel that the learned trial Judge has put himself into the appellate arena in support of his conviction. It is to be observed that this is not case where trial Judge had indicated the result that he had arrived at and announced that that he proposed to give his reasons later. In this case the trial was over, the rulings had been made after lengthy argument and supplementary reasons were delivered only by reason of the appeal. In this case, the appearance of justice would have been better served if the trial Judge had been content to let the matter stand as recorded in the transcript of the evidence." Finally, as found in Tremeear's Criminal Code under s. 682, there is the case of R. v. Watkins (1986), Q.A.C. 210 (C.A.). As said, the quote in Tremeear's is somewhat misleading and the quote when you draw up the case from Quicklaw is different. It was sent back for new trial for reasons other than the report. The initial decision of the trial judge held the lack of serenity of the room where the accused's confession was made rendered the confession inadmissible; the report to the Court of Appeal said the statement was not admitted because of language difficulty. Essentially the Court of Appeal said that the trial judge "erred in not admitting the statement at trial and that the judge's second thoughts, after notice of appeal was filed by the Crown should be ignored". In the present case, the Supplementary Reasons add number of factors about the demeanour of the peace officer which were not contained in the original decision, and also contains specific reference to outside material which was not contained in the original decision. All of these decisions, as said, were read by me after had concluded that would not consider the Supplementary Reasons, and had written the remarks which made just few moments ago. Turning back to the decision of December 2nd, the Crown says that the decision on that date flows or appears to flow as much from the Trial Judge's own preconceptions regarding the attitude of the police towards minorities as it does from the evidence. The Crown cites remarks by the Trial Judge, such as, that there is tendency for police to overreact when dealing with non‑white groups. The Crown suggests that analyzing this and other remarks in the December 2nd decision show clearly the Trial Judge's conclusions on credibility flow from racially based bias against police, and not from the evidence. Further, the Crown submits that this creates an appearance of unfairness. The Crown goes further and alleges that the remarks exhibit real bias. The respondent submits that there is no appeal on questions of facts, however, believe the law is otherwise. The normal function of an Appeal Court is not to substitute its own view of the facts for the trial judge, as found in the case of R. v. Bursey (1982), 53 N.S.R. (2d) 353 (C.A.). The usual issue is whether there was evidence on which properly instructed jury acting judicially could reach the same conclusion as the Provincial Court judge. (R. v. Arthur (1981), 1981 CanLII 353 (BC CA), 63 C.C.C. (2d) 117 (B.C.C.A.) leave to appeal refused December 21, 1981 and there are many decisions on this philosophy.) Also, s. 813 of the Criminal Code deals with summary conviction appeals, and following it is reference to the case of R. v. Crocker (1986), 73 N.S.R. (2d) 151, where it states the Crown has the right to appeal on facts, but an acquittal will only be set aside where the verdict is unreasonable or not supported by the evidence. In the case at bar, if there is to be found an apprehension of bias, then the verdict would not be supported by the evidence. Before dealing with the apprehension of bias, wish to deal with one other matter raised in argument. The Crown submitted in argument that the apparent preconception of the Learned Trial Judge against the police generally, created the appearance of unfairness and with such preconceptions, Constable Stienburg could not hope for fair hearing. The respondent submits the Constable was not on trial, that the Learned Trial Judge's comments dealt with the police in general and not the specific actions of Constable Stienburg, and the respondent hoped for and received fair trial. In the case of R. v. Wald, (1989) 1989 ABCA 49 (CanLII), 47 C.C.C. (3d) 315, although in different context, namely, one of determining the validity of certain sections under the Criminal Code in relation to s. and 11(d) of the Charter, Hetherington J.A. states at p. 336: "There will be prejudicial effect in the sense of an injury to the case for the Crown if the trier of fact forms an opinion of, or is biased against, the complainant as result of evidence as to her sexual reputation or as to her sexual activity with persons other than the accused.. Such prejudicial effect would render hearing unfair to the Crown. The principles of fundamental justice require that hearing be fair to both the Crown and the accused." Fundamental justice requires impartial decision makers, and includes natural justice and duty to act fairly. These remarks were made in the context of an administrative tribunal in the Supreme Court of Canada case of Pearlman v. Manitoba Law Society, 1991 CanLII 26 (SCC), [1991] S.C.R. 869; however, they surely apply equally, if not even more, to court. Turning to the issue of the apprehension of bias, the defence submits that the Trial Judge made findings of fact based on the credibility of the witnesses before her, and that in no way has she suggested in her reasons for making the decision that they were based on racial attitude or predisposition against police officers. There is certainly nothing in the transcript of the actual evidence which was heard on December 2nd to suggest any bias or apprehension of bias, but when turn to the decision rendered the same day, and presume immediately following the evidence and counsel's submissions, it contains thorough review of the facts and finding based upon credibility in favour of the accused. Had the decision ended there, at p. 68 of the original transcript, where she states: [redacted]” had it ended there, there would have been no basis for this appeal as the Crown has already conceded. Unfortunately, the decision did not. The Learned Trial Judge went on to add two more paragraphs which read as follows: A[redacted]” On thorough review of the transcript, find no basis for these remarks in the evidence. There was no evidence before the trial court as to the "prevalent attitude of the day" or otherwise the remarks made relating to the police. With great respect, judges must be extremely careful to avoid expressing views which do not form part of the evidence. The test of apprehension of bias is an objective one, that is, whether a reasonable right‑minded person with knowledge of all the facts would conclude that the judge's impartiality might reasonably be questioned. In my respectful opinion, in spite of the thorough review of the facts and the finding on credibility, the two paragraphs at the end of the decision lead to the conclusion that a reasonable apprehension of bias exists. Having found that, need go no further as such finding requires that new trial be ordered. As find there must be new trial, do not propose to deal with the suggested error in ruling certain evidence inadmissible. That will be matter for decision by the trial judge hearing the new trial. In conclusion, the appeal is allowed and a new trial is ordered in front of a different trial judge. J. Halifax, Nova Scotia
The young offender appealed his convictions contending an apprehension of bias on the part of the Youth Court Judge who made comments about the police and non-white accused. The Judge also wrote supplementary reasons after the appeal was filed. Allowing the appeal and ordering a new trial in front of a different trial judge, that there was no evidence before the Youth Court Judge as to the comments made. The court applied an objective test and concluded a reasonable apprehension of bias existed. Supplementary reasons should not be written without a request from the Court of Appeal.