R. v. Clarke (B.E.) et al., (2015) 365 N.S.R.(2d) 184 (SC)

• Judge: Coady, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: September 22, 2015
• Jurisdiction: Nova Scotia
• Citations: (2015), 365 N.S.R.(2d) 184 (SC);2015 NSSC 272

R. v. Clarke (B.E.) (2015), 365 N.S.R.(2d) 184 (SC);

    1151 A.P.R. 184

MLB headnote and full text

Temp. Cite: [2015] N.S.R.(2d) TBEd. OC.003

R. Blois Colpitts and Daniel Potter (applicants) v. Her Majesty the Queen (respondent)

(CRH 346068; 2015 NSSC 272)

Indexed As: R. v. Clarke (B.E.) et al.

Nova Scotia Supreme Court

Coady, J.

September 24, 2015.

Summary:

The accused were charged with fraud and conspiracy to commit fraud for allegedly manipulating the price of Knowledge House Inc. shares over an 18 month period in 2000 and 2001. An extensive R.C.M.P. investigation commenced in 2003 with the assistance of an expert (Evans). Evans' 2010 report supported the Crown's theory and he would be a critical Crown witness at trial. The accused sought Crown disclosure of two drafts of Evans' report and an unredacted copy of an electronic Task 335 folder, which contained all R.C.M.P. discussions with Evans and any materials forwarded to him. The Crown claimed solicitor-client and litigation privilege respecting the redacted portions of the folder. The accused also sought particulars of the alleged offences to ensure that they would be able to make full answer and defence.

The Nova Scotia Supreme Court, in a judgment reported (2012), 319 N.S.R.(2d) 384; 1010 A.P.R. 384, ordered that the Crown disclose the two draft reports and the unredacted copy of the Task 335 folder. The court declined to order further particulars, other than ordering the Crown to advise the accused whether they intended to lead evidence from other conspirators beyond the 13 identified. One of the accused (Colpitts) applied for an order that the Crown breached its duty under R. v. McNeil (SCC) to make reasonable inquiries respecting relevant material known to be in the possession of the Nova Scotia Securities Commission and to attempt to obtain those materials. Colpitts sought disclosure or, alternatively, access to the materials.

The Nova Scotia Supreme Court, in a judgment reported (2013), 344 N.S.R.(2d) 10; 1089 A.P.R. 10, held that the Crown breached its McNeil obligation. Since Colpitts already had the materials (but was precluded by court order from accessing them), the appropriate order was to permit Colpitts access to the materials. Colpitts now applied for disclosure of all e- mails/correspondence between the Crown and the Securities Commission after the date the indictment was preferred. The Crown, which possessed the information, had declined to disclose it on the ground that the communications were not relevant.

The Nova Scotia Supreme Court, in a judgment reported (2014), 349 N.S.R.(2d) 352; 1101 A.P.R. 352, ordered that the e-mails/correspondence be disclosed. Given the previous McNeil application, there was a reasonable possibility that the e-mails/correspondence contained relevant information. The Crown's bald statement that the information was irrelevant was an assertion only. The court was satisfied that the information could reasonably assist all of the accused in advancing a defence or defining their trial strategy. The accused applied to have the judge recuse himself, alleging both actual bias and a reasonable apprehension of bias based on remarks made in two case management conferences and in the prior decision on third party production (i.e., unable to adjudicate the matter impartially).

The Nova Scotia Supreme Court, in a judgment reported (2014), 353 N.S.R.(2d) 355; 1115 A.P.R. 355, dismissed the recusal application. Colpitts then brought an O'Connor application for the Securities Commission to disclose third party documents for which privilege was claimed. Of the 19 third parties given notice, only one (National Bank) responded by advising that it had a possible interest in 125 of the thousands of documents. A hearing was held to determine which of the documents were privileged. Once the privilege issue was resolved, the court would then determine the "likely relevance" of the remaining non-privileged documents as directed by O'Connor and McNeil.

The Nova Scotia Supreme Court, in a judgment reported (2015), 355 N.S.R.(2d) 227; 1123 A.P.R. 227, determined which documents were privileged. Now at issue was the "likely relevance" of the non-privileged documents.

The Nova Scotia Supreme Court, in a judgment reported (2015), 356 N.S.R.(2d) 364; 1126 A.P.R. 364, held that the accused failed to meet the threshold onus of showing that any of the 400 documents, other than some investigator's notes, were "likely relevant". One of the accused (Colpitts) brought a second recusal motion, to be considered cumulatively with the first recusal motion and expanded grounds.

The Nova Scotia Supreme Court, in a judgment reported (2015), 358 N.S.R.(2d) 163; 1131 A.P.R. 163, dismissed the application. The R.C.M.P. investigation took eight years to complete, with the assistance (after 2007) of a federal IMET Quick Start Team that provided the training and resources to conduct such complex investigations. There was a further five year delay from the date of the charges to the end of the trial. The accused applied under s. 24(1) of the Charter for a stay of proceedings, alleging a denial of their rights under ss. 7 and 11(b) of the Charter on the basis of pre-charge and post-charge delay, and abuse of process.

The Nova Scotia Supreme Court, in a judgment reported (2015), 363 N.S.R.(2d) 337; 1143 A.P.R. 337, dismissed the application. Colpitts brought a third recusal motion.

The Nova Scotia Supreme Court dismissed the motion.

Courts - Topic 686

Judges - Disqualification - Bias - By trial or applications judge - [See Courts - Topic 691 ].

Courts - Topic 691

Judges - Disqualification - Bias - Reasonable apprehension of bias - The accused were charged with fraud and conspiracy to commit fraud for allegedly manipulating the share price of Knowledge House Inc. over an 18 month period in 2000 and 2001 - There were a number of pre-trial proceedings dealing with, inter alia, disclosure - The accused applied to have the judge recuse himself, alleging both actual bias and a reasonable apprehension of bias based on remarks made in two case management conferences and in the prior decision on third party production (i.e., pre-judged the matter) - The trial judge dismissed the recusal application - Absent cogent evidence of bias, actual or perceived, the presumption of impartiality prevailed and the accused failed to prove, on a balance of probabilities, actual or reasonably apprehended bias - The comments were respecting procedural/scheduling issues in the much delayed trial - There were no comments on substantive issues or respecting the credibility of witnesses - A reasonable person would perceive the comments as efforts to manage the trial in a way that respected the accused's fair trial rights, including their right to make full answer and defence - The court was concerned with a number of factors that affected trial fairness, efficiency and management - A reasonable person would not consider the court to be an advocate rather than an impartial adjudicator - A judge did not create a reasonable apprehension of bias by being openly critical of the Crown or defence counsel where criticism was appropriate - Following three more hearings on procedural matters, one of the accused (Colpitts) brought a second recusal motion, to be considered cumulatively with the first recusal motion and expanded grounds - The trial judge dismissed the application - The second recusal motion was partly an attempt to re-litigate the first recusal motion and a collateral attack on the court's O'Connor application decision - The three expanded grounds relied on "sound more like grounds of appeal" - The presumption of judicial impartiality was not displaced - Following dismissal of the accused's application under s. 24(1) of the Charter for a stay of proceedings based on denial of their rights under ss. 7 and 11(b) of the Charter (pre-charge and post-charge delay) and abuse of process, Colpitts brought a third recusal motion - The Nova Scotia Supreme Court dismissed the application - Nothing done or said constituted actual bias and there was no cogent evidence to displace the presumption of judicial impartiality.

Cases Noticed:

Commission scolaire francophone du Yukon No. 23 v. Yukon (Procureure générale) (2015), 471 N.R. 206; 370 B.C.A.C. 1; 635 W.A.C. 1; 2015 SCC 25, refd to. [para. 17].

Counsel:

Mark Covan, James Martin and Scott Millar, for the federal Crown;

R. Blois Colpitts, self-represented;

George MacDonald, Q.C., and Gavin Giles, Q.C., for Daniel Potter.

This motion was heard on September 22, 2015, at Halifax, N.S., before Coady, J., of the Nova Scotia Supreme Court, who delivered judgment orally on September 24, 2015, with written reasons filed on September 29, 2015.