Jurisdiction of Provincial Court Judge - Recusal
R. v. Duong, 1998 CanLII 14950 (ON SC), <http://canlii.ca/t/1wcvd>
ISSUES
1. What is the inherent jurisdiction
of a superior court
trial judge and is it complete with regard
to the matter seized?
2. If this is complete jurisdiction,
does this prevent any other superior court judge from hearing an
application for recusal of the superior court trial judge seized
with the matter?
3. Is there anything in relevant statutes or rules which
changes this jurisdiction? Do any statutes or
rules confer special jurisdiction on the Chief
Justice to hear this application?
4. Is there something special about an application for
recusal based on apprehension of judicial bias, such that the Charter
demands a different practice regarding jurisdiction?
1. What is the inherent jurisdiction
of a superior court
trial judge and is it complete with regard to the
matter seized?
[11]
A superior
court has original and plenary jurisdiction in all civil and criminal matters including
inherent jurisdiction to control and regulate its
process and to prevent this from being abused or obstructed (Ewaschuk, Criminal
Pleadings & Practice in Canada, 2nd ed. (1998), vol. 1,
para. 1:0035; see also MacMillan Bloedel Ltd. v. Simpson, 1995 CanLII 57 (SCC), [1995] 4 S.C.R. 725, 103 C.C.C. (3d) 225). By
contrast, the jurisdiction of both inferior courts and courts of appeal
must be conferred by statute regarding the subject matter; i.e.: Criminal
Code, Criminal Proceedings Rules, SI/92-99,
Courts of Justice Act, R.S.O. 1990, c.
C.43, Criminal
Appeal Rules, SI/93‑169 (Ewaschuk para. 1:0035, and
para. 23:0040). This is evidenced in Criminal
Code, R.S.C. 1985, c. C-46, s. 674:
674. No proceedings other than those authorized by this Part
[Indictable
Appeals] and Part XXVI [Extraordinary Remedies] shall be taken
by way of
appeal …
[12]
The jurisdiction
of the superior court,
then, is the broadest possible, and it is inherent: it exists by virtue of
historical precedent and common law, and common practice.
[13]
Such inherent jurisdiction
cannot itself be subject to general jurisdictional
review (to which prerogative orders speak). Ewaschuk para. 26:0080:
…
Inasmuch as a superior court has plenary and original jurisdiction
over all matters, a superior court cannot assume jurisdiction it does not possess and for that reason is
not subject to prerogative writs …
[14]
Since no prerogative relief lies
against a superior court,
where the superior court
is the trial court, only the verdict may be
appealed, as per the specified grounds and procedure laid out in the Criminal
Code (Part XXI, especially ss.
674, 675,
676).
[15]
This inherent jurisdiction
was affirmed, and affirmed as unique, in Roberts v. Canada, 1989 CanLII 122 (SCC), [1989] 1 S.C.R. 322 at 331: “the Federal Court is without any inherent jurisdiction
such as that existing in provincial superior courts …”.
[16]
The superior
court jurisdiction is
not only inherent, but also complete. And such complete jurisdiction,
to hear all matters relating to the trial, resides with the judge seized of the trial. There is a difference
between a judge seized of the trial and orders
made by judges who are not seized of a trial (i.e.:
before a person is charged, at a preliminary inquiry, etc.). See Kourtessis,
infra (pre-charge); Adamson, infra (pre-trial order for removal
of counsel); Litchfield, infra (pretrial severance order).
[17]
The distinction between trial and
“non-trial” judges (of the same level of court) is further clarified by the rule against
collateral attack. Except as authorized by the appeal sections of the Criminal
Code (appealing decisions for relief as against an inferior court), collateral or interlocutory appeals against superior court decisions in
indictable criminal matters are prohibited: Ewaschuk para. 23:0040; R.
v. Adamson reflex, (1991), 65 C.C.C. (3d)
159 (Ont. C.A.).
[18]
In R. v. Litchfield 1993 CanLII 44 (SCC), (1993), 86 C.C.C. (3d) 97 (S.C.C.), the rule
against collateral attack was loosened, but in regard to a pre-trial severance
order made by a judge other than the trial judge. The difference between the trial and “pre-trial” judge is key in this case. The general rule against
collateral attack was affirmed, and a complete reading of the case indicates
that where an order is made by a trial judge who
is seized of the matter, this can only be attacked on appeal (as provided by
the express rules in the Criminal
Code). In fact, the Court indicates that
the trial judge could have overturned the
severance order by the “pre-trial” judge, and this
decision by the trial judge could itself be
subject to appeal. This confirms the proper process, and the jurisdictional rationale behind it. Iacobucci J. at
p. 110 states:
The rationale behind the rule [against collateral attack] is
powerful: the rule seeks to maintain the rule of law and to preserve the repute
of the administration of justice. To allow parties to govern their affairs
according to their perception of matters such as the jurisdiction
of the court issuing the order would result in
uncertainty. Further, “the orderly and functional administration of justice”
requires that court orders be considered final and
binding unless they are reversed on appeal (R. v. Pastro, supra, at
p. 497).
[19]
Bias, as a jurisdictional
issue and a collateral matter, must be heard by the superior
court trial judge
seized.
[20]
For any other superior
court judge to hear
and decide on an application for recusal of the trial judge
seized would create new and unauthorized jurisdictional
review and prerogative relief against a superior court, which is not allowed. Ewaschuk
para. 26:0080, citing Reference re: Judicature Act (N.B.) reflex, (1988), 46 C.C.C. (3d)
203
[21]
(N.B.C.A.) at 235-7, states that jurisdictional error by one superior
court is not subject to review by another superior court of the same
province. Only the appeal process is available and it is exhaustive. This
“exhaustive” process was affirmed in Kourtessis v. M.N.R. 1993 CanLII 137 (SCC), (1993), 81 C.C.C. (3d) 286 (S.C.C.): that no
other type of “review” could be heard and no appeal lies where none is
expressly provided by the relevant statutes.
[22]
This same appeal process was also
affirmed in Rahey v. The Queen reflex, (1987), 33 C.C.C. (3d)
289 (S.C.C.), and R.D.S., infra. Both cases dealt with appeals from or
reviews of inferior courts by superior courts, but they
establish the route for this type of application: apply to the trial judge seized, then appeal to a higher level court. The Applicant in the case at hand relied on Rahey,
but Rahey is distinguishable precisely because it was a superior court reviewing
the decision of an inferior court (magistrate).
[23]
In Rahey, Lamer J. at
p. 299 spoke to the authority of the superior
court to both determine whether it would hear the
issue regarding the inferior court, and to hear
it; and the fact that such should generally not be the subject of appeal:
In Mills, it was also decided that the superior courts should have
“constant, complete and concurrent jurisdiction”
for s. 24(1)
applications. But it was therein emphasized that the superior
courts should decline to exercise this
discretionary jurisdiction unless, in the opinion
of the superior court
and given the nature of the violation or any other circumstance, it is more
suited than the trial court to assess and grant
the remedy that is just and appropriate. The clearest, though not necessarily
the only, instances where there is a need for the exercise of such jurisdiction are … those where it is the process below
itself which is alleged to be in violation of the Charter’s
guarantees. [Emphasis added.]
…
In passing, might I say that her decision to exercise her jurisdiction is not a matter that should be reviewed on
appeal unless that decision was arrived at in a manner and for reasons which
traditionally have attracted interference on the part of appeal courts.
[24]
A similar situation—in which a superior court reviewed the
decision of an inferior court, but here for
bias—was present in R. v. S. (R.D.) 1997 CanLII 324 (SCC), (1997), 118 C.C.C. (3d) 353 (S.C.C.)
(referred to as R.D.S.). The Supreme Court
affirmed and clarified the process outlined in Rahey: that the
application should be heard by the judge seized of
the trial, or by appellate review. Also, as this dealt directly with judicial
bias, it also affirms that applications of this nature fall within the trial court’s jurisdiction. Cory
J. at p. 386 states:
If actual or apprehended bias arises from a judge’s words or conduct, then the judge has exceeded his or her jurisdiction
… This excess of jurisdiction can be remedied by
an application to the presiding judge for
disqualification if the proceedings are still underway, or by appellate review
of the judge’s decision.
[25]
Rahey and R.D.S. together
deliver this important statement on the point relevant to the case at hand: the
trial judge should hear the application (i.e.:
for bias); then the matter may be appealed to a higher level court. The only matter that can be heard on appeal
regarding a trial before a superior court, is the verdict itself (although bias can be a
ground of appeal). Thus, the process is clearly defined. The superior court trial judge’s jurisdiction is
complete. There are no gaps. The appeal process is exhaustive.
[26]
The recusal process to be followed when
the trial is before a superior court judge is that the
application for recusal or disqualification based on apprehension of bias
should be put to, and heard by, the trial judge
himself. This recusal application should be made in a timely fashion: R. v.
Curragh Inc., 1997 CanLII 381 (SCC), [1997] 1 S.C.R. 537, 113 C.C.C. (3d) 481. To
be raised on appeal, it must have been raised at trial: Taylor v. Canadian
Human Rights Commission, 1990 CanLII 26 (SCC), [1990] 3 S.C.R. 892. An appeal will then lie
to the Court of Appeal on the verdict (Criminal
Code s.
675(1)). If bias is found on appeal, it will result in a “nullity” of the
proceedings and decision, such that a new trial with a different judge would have to be ordered (Ewaschuk
para. 23:2100; R.D.S.).
2. If this is complete jurisdiction,
does this prevent any other superior court judge from hearing an
application for recusal of the superior court trial judge seized
with the matter?
[27]
The short answer to this question must
be “yes”. The decision of Ferguson J. in R. v. Stark, [1994] O.J. No. 406 (QL) (Gen. Div.)
[summarized 22 W.C.B. (2d) 549], concluded
that a superior court
trial judge “by invitation” could confer the
decision-making authority (to decide on his disqualification based on
apprehension of bias) to another judge of the superior court. He reasoned
that a superior court
trial judge’s inherent jurisdiction
to control the process of the court must include
the jurisdiction to transfer the authority to hear
such a trial application, to another judge of
concurrent jurisdiction.
[28]
This issue of “invitation” does not
arise in the case at hand (thus Stark is readily distinguishable), but
it is important to determine how it “fits” with the analysis of inherent and
complete jurisdiction.
[29]
The very phrase “inherent jurisdiction” indicates that the jurisdiction
to hear the referral application must be innate and cannot depend on
“invitation” or “refusal” to refer. Whether or not the first judge has some jurisdiction
to consent to a referral of the decision, it cannot be that the second judge has the jurisdiction
to hear and decide an issue in the seized trial of a judge
whose jurisdiction cannot be challenged or
abrogated, save by the appeal process, which is exhaustive. In any event, only court of appeal decisions are binding on a superior court trial judge.
[30]
There are also valid policy reasons
against such a referral to another judge.
Virtually all matters should be dealt with at trial (by the trial judge), and only appealed/reviewed when there is a full
record to consider. La Forest J. at pp. 294-5 in Kourtessis, states:
There are various policy reasons for enacting a procedure
that limits rights of appeal. Sometimes the opportunity for more opinions does
not serve the ends of justice. A trial court, for
example, is in a better position to assess the factual record … [and] there
should not be unnecessary delay in the final disposition of proceedings,
particularly proceedings of a criminal character. This is especially applicable
to interlocutory matters which can ultimately be decided at trial: see R. v.
Mills 1986 CanLII 17 (SCC), (1986), 26 C.C.C. (3d) 481 … On this point,
McLachlin J., speaking for the majority in R. v. Seaboyer 1991 CanLII 76 (SCC), (1991), 66 C.C.C. (3d) 321 at p. 414 …
noted that there was a valid policy concern to control the “plethora of
interlocutory appeals and the delays which inevitably flow from them”. Such
review should, in the court’s view, normally take
place at trial. This McLachlin J. added, “will also permit a fuller view of the
issue by the reviewing courts, which will have the
benefit of a more complete picture of the evidence and the case” …
[31]
In summary, it does not fit with the
logic of inherent or complete jurisdiction, nor
with policy, that jurisdiction to hear an
application for recusal of the trial judge based
on bias could be conferred by invitation or referral on another judge of concurrent jurisdiction.
3. Is there anything in relevant statutes or rules which
changes this jurisdiction? Do any statutes or
rules confer special jurisdiction on the Chief
Justice such that the Chief Justice could hear this application?
[32]
The short answer is “no”. The relevant
appeal provisions of the Criminal
Code regarding indictable offences are contained in Part XXI and s. 784.
They are exhaustive in regards indictable offence appeals.
[33]
Section
482 of the Criminal
Code confers on superior courts and courts of appeal
the power to make rules of court “not inconsistent
with this or any other Act of Parliament”.
[34]
The Criminal Proceedings Rules do
deal with applications, among other things. Subrule 1.02(1) states:
1.02(1) These rules are enacted pursuant to
subsection 482(1) of the Code and apply to prosecutions,
proceedings, applications and appeals, as the case may be, within the jurisdiction of the Ontario Court
(General Division), instituted in relation to any matter of a criminal nature
or arising from or incidental to any such prosecution, proceeding, application
or appeal.
[35]
Subrule 1.04(2) provides:
1.04(2) Where matters are not provided for in these rules,
the practice shall be determined by analogy to them.
[36]
Also, Rule 6 deals with applications.
Subrule 6.02 provides:
6.02 An application shall be made to a judge of the court in the
county, district or region in which the trial of the indictment to which the
proceedings relate is being or is to be held, unless otherwise directed … by
the Chief Justice or a judge of the court, designated by him, or unless otherwise provided
by these rules.
[37]
As Ferguson J. noted in Stark at
para. 41, this rule appears to refer to the Chief Justice directing an
application be made outside the county, district or region in which the trial
of the indictment is to be held. The discretion of the Chief Justice seems only
to concern geography. It certainly does not confer authority for one superior court judge to hear an application already decided by the
trial judge or to make an order disqualifying the
trial judge. There is nothing in the Criminal
Proceedings Rules or by analogy in practice that supports the Applicant’s
position on this application.
[38]
There is also nothing in the Courts of Justice Act, R.S.O. 1990, c.
C.43, which would provide for this type of jurisdiction.
Nor does this Act confer any special power upon the Chief Justice to take this jurisdiction and hear such an application to recuse a
trial judge. Section
14(1) provides:
14(1) The Chief Justice of the Ontario Court shall direct and supervise the sittings of the
Ontario Court (General Division) and the
assignment of its judicial duties.
[39]
Section
36(1) of the Courts of Justice Act provides the Chief Judge of the Provincial Division with identical duties
to those of the Chief Justice of the Ontario Court
in s. 14(1).
These sections relate to general scheduling, and do not change the law as
laid out in the Criminal
Code and common law.
[40]
Chief Justice LeSage in R. v.
Mallory and Stewart (unreported decision, Ont. Ct. (Gen. Div.), December
16, 1996) stated that the motion for recusal of a superior
trial court judge
based on bias “to the extent that it is brought before me as Chief Justice, is
without jurisdiction”; and to the extent it was
brought before him or any other superior court judge, he found “no jurisdiction to entertain the motion which was properly
returnable before the trial judge”. The Chief
Justice implied that his assignment duties, delegated to the Regional Senior
Justice, were complete when the trial judge was
assigned to the case.
[41]
There appears to be no statutory
provision or rule or case law which supports the Applicant’s position in the
case at hand. (As noted in Stark at para. 52 there appear to be no
reported cases in which one judge heard a
disqualification application for another judge of
concurrent jurisdiction.) While the Rules of
Criminal Proceedings do not expressly mandate that the trial judge must hear all pre-trial motions, or that they must
all be heard by the same judge, to allow another superior court judge to hear an application for recusal of the trial judge seized would be inconsistent with the exhaustive
appeal provisions of the Criminal
Code and the inherent and complete jurisdiction
of the superior court
trial judge to determine all matters in the trial
proceeding. The Rules cannot be inconsistent with the Code. Finally,
there is no special authority conferred on the Chief Justice which would allow
him to override the express and implied provisions of the Code.
4. Is there something special about an application for recusal
based on apprehension of judicial bias, such that the Charter
demands a different practice regarding jurisdiction?
[42]
The answer is no. In R.D.S., Cory
J. set out the process for disqualification applications based on bias, which
begins with the trial judge against whom the
application is directed hearing the application himself. Implicit in this
process is an understanding that the judge seized
of the trial is competent to decide the issue, as he is all other issues
relating to the trial.
[43]
This competence at first instance, is
based on a presumption of judicial impartiality that is a key foundation of our
justice system. Cory J. at p. 392 states:
The oath requires a judge to
render justice impartially. To take that oath is the fulfilment of a life’s
dream. It is never taken lightly. Throughout their careers, Canadian judges strive to overcome the personal biases that are
common to all humanity in order to provide and clearly appear to provide a fair
trial for all who come before them. Their rate of success in this difficult
endeavour is high.
Courts have rightly recognized
that there is a presumption that judges will carry
out their oath of office. See R. v. Smith & Whiteway Fisheries Ltd. 1994 CanLII 4057 (NS CA), (1994), 133 N.S.R. (2d) 50 (C.A.), and Lin, supra. This
is one of the reasons why the threshold for a successful allegation of
perceived judicial bias is high.
[44]
Bias and the apprehension of bias can
exist; there must be a remedy. There is a remedy. The accused (or the Crown)
can appeal the verdict delivered by a superior court judge. This route of
appeal is based on fundamental jurisdictional
principles of the court system, and to change it
is “beyond the judicial reach”. In Mills v. The Queen 1986 CanLII 17 (SCC), (1986), 52 C.R. (3d) 1, 26 C.C.C. (3d) 481
(S.C.C.), McIntyre J. at p. 17 states:
To begin with, it must be recognized that the jurisdiction of the various courts
of Canada
is fixed by the legislatures of the various provinces and by the Parliament of
Canada. It is not for the judges to assign jurisdiction in respect of any matters to one court or another. This is wholly beyond the judicial
reach. In fact, the jurisdictional boundaries
created by Parliament and the legislatures are for the very purpose of
restraining the courts by confining their actions
to their allotted spheres.
[45]
The current criminal appeal system was
recognized as valid in R.D.S., and in Dagenais v. C.B.C. 1994 CanLII 39 (SCC), (1994), 94 C.C.C. (3d) 289 (S.C.C.) at 302.
[46]
The Charter
changed nothing in regards this jurisdictional
and appeal process. McIntyre J. in Mills at p. 17, states:
In s. 24(1)
of the Charter
the right has been given, upon the alleged infringement or denial of a Charter
right, to apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the
circumstances. The Charter
has made no attempt to fix or limit the jurisdiction
to hear such applications. It merely gives a right to apply in a court which has jurisdiction.
[47]
He continues at p. 18:
The absence of jurisdictional
provisions and directions in the Charter
confirms the view that the Charter
was not intended to turn the Canadian legal system upside down. What is
required rather is that it be fitted into the existing scheme of Canadian legal
procedure. There is no need for special procedures and rules to give it full
and adequate effect.
[48]
In summary, bias claims are to be
handled through the established process and according to established jurisdiction. CONCLUSION
[49]
The application herein is dismissed. I
find this court has no jurisdiction
to hear an application pursuant to s. 24(1)
of the Charter
to order the recusal of the trial judge in
this proceeding. Any application for recusal is properly returnable before the
trial judge.
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