Digest: R v Goodpipe, 2018 SKQB 189

• Date: June 18, 2019

Reported as: 2018 SKQB 189

Docket Number: CRM 7/17 JCR , QB17575

Court: Court of Queen's Bench

Date: 2019-06-18

Judges:

• Kalmakoff

Subjects:

• Criminal Law � Manslaughter � Sentencing � Dangerous Offender Application
• Criminal Law � Sentencing � Judge � Recusal
• Criminal Law � Procedure ��Reasonable Apprehension of Bias

Digest: The accused was convicted of manslaughter after trial by jury. Sentencing was adjourned while the Crown considered whether to request an assessment order for an application under Part XXIV of the Criminal Code and it had decided to do so. Counsel brought to the attention of the trial judge who would be conducting the sentencing hearing that he had been the Crown prosecutor in a criminal proceeding against the accused in 2003. In that case, the accused had entered a guilty plea to a charge of armed robbery and was sentenced to 16 months� imprisonment. The defence argued that the judge should declare a mistrial or recuse himself from hearing the sentencing proceedings. Although the defence did not allege actual bias, there was a reasonable apprehension of it because of the judge�s involvement in the 2003 prosecution.
HELD: The judge held that he would not declare a mistrial but recused himself from the sentencing hearing. He stated that he had no independent memory of the 2003 prosecution until the transcript of the hearing was brought to his attention, but the fact that he had been the prosecutor was insufficient to raise a reasonable apprehension of bias. With respect to sentencing though, the Part XXIV application by the Crown would involve consideration of the accused�s 2003 sentencing. The judge found that although the test for disqualification had not been met, it would be appropriate for him to recuse himself from the proceeding and the accused�s sentencing hearing would proceed before another judge.

Federal Statutes Considered:

• Criminal Code, RSC 1985, c C-46, s 669.2
• Criminal Code, RSC 1985, c C-46, Part XXIV
• Criminal Code, RSC 1985, c C-46, s 752

Cases Considered:

• Aalbers v Aalbers, 2013 SKCA 64, 417 Sask R 69
• Boardwalk Reit LLP v Edmonton (City), 2008 ABCA 176, [2008] 8 WWR 251
• R v Anderson, 2009 SKPC 57, 341 Sask R 165
• R v Bagot, 2000 MBCA 30, [2000] 6 WWR 714
• R v Burke, 2002 SCC 55, [2002] 2 SCR 857, 213 DLR (4th) 234, 164 CCC (3d) 385, 2 CR (6th) 1, 160 OAC 271
• R v Dorscheid, 1991 ABCA 146, 116 AR 79
• R v Dueck, 2011 SKCA 45, 371 Sask R 134
• R v Kochan, 2001 ABQB 346...