R. v. Curragh Inc. et al., (1997) 159 N.S.R.(2d) 1 (SCC)

• Judge: Lamer, C.J.C., La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major, JJ.
• Court: Supreme Court (Canada)
• Case Date: March 20, 1997
• Jurisdiction: Canada (Federal)
• Citations: (1997), 159 N.S.R.(2d) 1 (SCC)

R. v. Curragh Inc. (1997), 159 N.S.R.(2d) 1 (SCC);

    468 A.P.R. 1

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

....................

Gerald James Phillips and Roger James Parry (appellants) v. Her Majesty the Queen (respondent)

(25075)

Indexed As: R. v. Curragh Inc. et al.

Supreme Court of Canada

Lamer, C.J.C., La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major, JJ.

March 20, 1997.

Summary:

The accused were charged with man­slaughter and criminal negligence. During the trial, the trial judge complained to the Director of Public Prosecution about the lead Crown prosecutor's conduct and stated that he wanted him removed or he "would take steps to attain that end". The Crown brought a motion for recusal.

The Nova Scotia Supreme Court dismissed the motion. Later in the trial it was learned that the Department of Labour had relevant documents in its possession that had not been previously disclosed. The accused applied to stay proceedings on the grounds of abuse of process and that their s. 7 Char­ter rights were violated by late disclosure and non-disclosure by the Crown.

The Nova Scotia Supreme Court, in a decision reported 146 N.S.R.(2d) 163; 422 A.P.R. 163, allowed the application and stayed the proceedings. The Crown appealed.

The Nova Scotia Court of Appeal, in a decision reported 146 N.S.R.(2d) 161; 422 A.P.R. 161, allowed the appeal and ordered a new trial. The accused appealed.

The Supreme Court of Canada, McLachlin and Major, JJ., dissenting, dismissed the appeal where the trial judge had shown a reasonable apprehension of bias and, there­fore, the order staying the proceedings was void.

Editor's note: For a related case see 140 N.S.R.(2d) 177; 399 A.P.R. 177.

Civil Rights - Topic 8374

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Stay of proceedings - [See both Courts - Topic 691.1 ].

Courts - Topic 691.1

Judges - Disqualification - Bias - Rea­sonable apprehension of bias - Effect of - The accused were charged with man­slaughter and criminal negligence - The trial judge complained to the Director of Public Prosecution about the lead Crown prosecutor's conduct and stated that he wanted him removed or he "would take steps to attain that end" - The Crown's motion for recusal was denied - The trial judge stayed proceedings because of late disclosure and non-disclosure by the Crown - The Supreme Court of Canada affirmed that the trial was unfair as a result of the demonstrated apprehension of bias - The court held that once the trial judge was found by an appellate court to have demonstrated a reasonable apprehen­sion of bias it retroactively rendered void and without effect the order staying the charges - See paragraphs 1 to 10.

Courts - Topic 691.1

Judges - Disqualification - Bias - Rea­sonable apprehension of bias - Effect of - The Supreme Court of Canada stated that "[t]he properly drawn conclusion that there is reasonable apprehension of bias will ordinarily lead inexorably to the decision that a new trial must be held. In circum­stances where reasonable apprehension of bias is demonstrated the trial judge has no further jurisdiction in the proceedings and there is no alternative to a new trial. ... Should it be concluded by an appellate court that the words or actions of a trial judge have exhibited bias or demonstrated a reasonable apprehension of bias a basic right has been breached and the exhibited bias renders the trial unfair ... when a court of appeal determines that the trial judge was biased or demonstrated a rea­sonable apprehension of bias, that finding retroactively renders all the decisions and orders made during the trial void and without effect." - See paragraphs 5 to 8.

Criminal Law - Topic 4593

Procedure - Costs - For improper conduct by trial judge - The accused were charged with manslaughter and criminal negligence - The trial judge complained about the lead Crown prosecutor and wanted him removed or he "would take steps to attain that end" - The Crown's motion for recusal was denied - The trial judge stayed proceedings because of late dis­closure and non-disclosure by the Crown - The Nova Scotia Court of Appeal allowed the Crown's appeal and ordered a new trial - The Supreme Court of Canada affirmed the decision - The court ordered that the accused recover reasonable legal costs of the proceedings to date and rea­sonable legal costs incurred in the new trial where the delays and costs incurred arose from systemic problems oc­casioned to a large extent by the trial judge's conduct which gave rise to the appre­hen­sion of bias - See paragraph 13.

Criminal Law - Topic 4633

Procedure - Mistrials - Grounds - [See second Courts - Topic 691.1 ].

Criminal Law - Topic 4867

Appeals - Indictable offences - Grounds of appeal - Bias - [See both Courts - Topic 691.1 ].

Practice - Topic 7350.1

Costs - Costs in criminal proceedings - Payable by Crown - Conduct of trial judge - [See Criminal Law - Topic 4593 ].

Cases Noticed:

Newfoundland Telephone Co. v. Board of Commissioners of Public Utilities (Nfld.), [1992] 1 S.C.R. 623; 134 N.R. 241; 95 Nfld. & P.E.I.R. 271; 301 A.P.R. 271, refd to. [para. 6].

R. v. Stinchcombe, [1991] 3 S.C.R. 326; 130 N.R. 277; 120 A.R. 161; 8 W.A.C. 161; 68 C.C.C.(3d) 1, refd to. [para. 88].

R. v. Livingstone (1990), 57 C.C.C.(3d) 449 (B.C.S.C.), refd to. [para. 91].

R. v. O'Connor (H.P.), [1995] 4 S.C.R. 411; 191 N.R. 1; 68 B.C.A.C. 1; 112 W.A.C. 1, refd to. [para. 91].

R. v. Egger (J.H.), [1993] 2 S.C.R. 451; 153 N.R. 272; 141 A.R. 81; 46 W.A.C. 81, refd to. [para. 93].

R. v. Chaplin (D.A.) et al., [1995] 1 S.C.R. 727; 178 N.R. 118; 162 A.R. 272; 83 W.A.C. 272, refd to. [para. 93].

Taylor and Western Guard Party v. Ca­nadian Human Rights Commission, [1987] 3 F.C. 593; 78 N.R. 180 (F.C.A.), affd. [1990] 3 S.C.R. 892; 117 N.R. 191, refd to. [para. 106].

Canada Metal Co. v. Canadian Broad­casting Corp. (No. 2) (1974), 4 O.R.(2d) 585 (H.C.), refd to. [para. 106].

R. v. Cloutier, [1979] 2 S.C.R. 709; 28 N.R. 1, refd to. [para. 107].

R. v. Pastro (1988), 66 Sask.R. 241 (C.A.), refd to. [para. 109].

R. v. Smith (R.C.) (1995), 169 A.R. 341; 97 W.A.C. 341; 31 Alta. L.R.(3d) 227 (C.A.), refd to. [para. 111].

R. v. Hall (1988), 69 Sask.R. 245 (Q.B.), refd to. [para. 111].

United States v. Daley (1977), 564 F.2d 645 (2d Cir.), certiorari denied (1979), 435 U.S. 933, refd to. [para. 113].

Smith v. Danyo (1977), 441 F.Supp 171 (M.D. Penn.), affd. (1978), 585 F.2d 83, refd to. [para. 113].

Martin-Trigona, Re (1983), 573 F.Supp. 1237 (D. Conn.), affd. (1985), 770 F.2d 157 (2d Cir.), refd to. [para. 113].

R. v. Jewitt, [1985] 2 S.C.R. 128; 61 N.R. 159; [1985] 6 W.W.R. 127; 21 C.C.C.(3d) 7; 20 D.L.R.(4th) 651; 47 C.R.(3d) 193, refd to. [para. 118].

R. v. Young (1984), 3 O.A.C. 254; 46 O.R.(2d) 520 (C.A.), refd to. [para. 122].

Authors and Works Noticed:

McWilliams, Peters K., Canadian Criminal Evidence (3rd Ed. 1988)(looseleaf 1996), c. 1:10100 [paras. 95, 120].

Stuesser, Lee, Abuse of Process: The Need to Reconsider (1994), 29 C.R.(4th) 92, pp. 99 [para. 123]; 103 [para. 91].

Counsel:

Gordon R. Kelly and N. Kent Clarke, for the appellant, Phillips;

Frank E. DeMont and John A. McKinlay, for the appellant, Parry;

Craig M. Garson, G. Arthur Theuerkauf and Andrew S. Macdonald, for the Crown.

Solicitors of Record:

Blois, Nickerson & Bryson, Halifax, Nova Scotia, for the appellant, Phillips;

Nova Scotia Legal Aid - Westray Office, Halifax, Nova Scotia, for the appellant, Parry;

Garson, Knox & MacDonald, Halifax, Nova Scotia, for the Crown.

This appeal was heard on November 26, 1996, before Lamer, C.J.C., La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major, JJ., of the Supreme Court of Canada.

On March 20, 1997, the judgment of the court was rendered in both official lan­guages, and the following opinions were filed:

La Forest and Cory, JJ. (Lamer, C.J.C., L'Heureux-Dubé, Gonthier and Iacobucci, JJ., concurring) - see para­graphs 1 to 14;

Sopinka, J. - see paragraphs 15 to 18;

McLachlin and Major, JJ., dissenting - see paragraphs 19 to 127.