No rational basis for conclusion that judge’s reasons contained prejudgment of witness’s credibility

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No rational basis for conclusion that judge’s reasons contained prejudgment of witness’s credibility

Crown applied for judge to recuse himself and for mistrial on basis of reasonable apprehension of bias during trial of two accused for kidnapping and murder. Judge had earlier ruled on two applications wherein defence alleged that Crown had conducted improper interview of witness who had been co-accused. Defence had alleged that disclosure of photographs and interview itself led to witness changing his testimony from his preliminary evidence. Judge ruled that because of conduct by Crown at preparatory interview of witness, trial should continue without jury. Application dismissed. There was no rational basis for conclusion that judge’s reasons contained prejudgment of witness’s credibility or any apprehension of bias against Crown.

R. v. Spence (June 9, 2011, Ont. S.C.J., Howden J., File No. 09-225) 95 W.C.B. (2d) 383 (11 pp.).

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