Trial judge’s decision to hear evidence from witness before dismissing s. 11(b) application did not give rise to reasonable apprehension of bias

Ontario criminal | Appeal

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Trial judge’s decision to hear evidence from witness before dismissing  s. 11(b) application did not give rise to reasonable apprehension of bias

Accused convicted of fraud over $5,000 and two counts of uttering forged documents for her role in assisting “straw buyer” to obtain mortgage. Mortgagee bank suffered loss of $118,873 as result of fraud. Accused submitted circumstances surrounding trial judge’s Charter s. 11(b) ruling gave rise to reasonable apprehension of bias. Accused submitted trial judge should not have heard evidence from main Crown witness (afternoon of first trial day) before making her s. 11(b) ruling (start of second trial day). Accused claimed this chronology exposed trial judge to critical pieces of Crown case and this may have influenced her s. 11(b) ruling. Accused submitted fact that trial judge delivered her reasons for s. 11(b) ruling 15 months after application, and after hearing two more days of evidence, suggested again that her s. 11(b) ruling may have been tainted by evidence she heard. Accused appealed her conviction. Appeal dismissed. Trial judge indicated she was inclined to hear from first witness, after indicating that she would reserve her decision on s. 11(b) application. This witness had travelled from Australia rather than attend on earlier trial date, and was subject of material witness warrant. Witness was present when argument was completed on s. 11(b) application. Crown indicated that he was content to proceed with evidence of first witness that afternoon. Defence counsel was silent. Trial judge’s decision to hear few hours of evidence from this witness before she formally dismissed  s. 11(b) application next morning did not give rise to reasonable apprehension of bias. There was nothing in ruling on that application to suggest it was affected by evidence heard before application was dismissed. Nor did fact that s. 11(b) ruling was delivered 15 months later once trial had resumed raise bias concern. During trial, rulings with reasons to follow is common and necessary practice. Reasons on s. 11(b) application in this case were very comprehensive and addressed carefully and in detail submissions that parties, especially accused, made at application hearing. There was not even hint ruling was coloured by evidence heard between day trial judge announced her ruling (second trial day) and day she delivered her reasons.
R. v. Montoya (Nov. 17, 2015, Ont. C.A., J.C. MacPherson J.A., M. Tulloch J.A., and G. Pardu J.A., File No. CA C56257) 126 W.C.B. (2d) 312.


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