R. v. Hahn (C.), (2013) 428 Sask.R. 61 (QB)

• Judge: Ottenbreit, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: August 19, 2013
• Jurisdiction: Saskatchewan
• Citations: (2013), 428 Sask.R. 61 (QB);2013 SKQB 295

R. v. Hahn (C.) (2013), 428 Sask.R. 61 (QB)

MLB headnote and full text

Temp. Cite: [2013] Sask.R. TBEd. OC.018

Her Majesty the Queen v. Christopher Hahn

(2012 J No. 19; 2013 SKQB 295)

Indexed As: R. v. Hahn (C.)

Saskatchewan Court of Queen's Bench

Judicial Centre of Saskatoon

Ottenbreit, J.

August 19, 2013.

Summary:

Hahn was charged with criminal harassment of Justice Smith, contrary to s. 264 of the Criminal Code. Hahn filed a preliminary application for a stay of the charge pursuant to ss. 7, 9, 11(e) and 24(1) of the Charter. The application for a stay was made on the basis that there was a reasonable apprehension of bias on the part of the Chief Justice Popescul of the Court of Queen's Bench for Saskatchewan when he conducted a bail review of an order denying Hahn bail. Hahn applied to issue a subpoena duces tecum compelling Chief Justice Popescul to attend court and give testimony in the Charter application, along with all electronic mail messages, memoranda and other documentation relating to Hahn that were either created by or received by the Chief Justice in the course of his administrative duties respecting this matter.

The Saskatchewan Court of Queen's Bench dismissed the application to issue a subpoena to the Chief Justice.

Courts - Topic 313

Judges - Independence of judiciary - Judicial immunity - The Saskatchewan Court of Queen's Bench stated that the following principles emerged from the jurisprudence: "1. Judges are immune from testifying in relation to actions undertaken in their adjudicative capacity; 2. This immunity from testifying extends to their administrative functions; 3. Immunity from testimonial compulsion is integral to an impartial and independent judicial system; 4. Judges may be compellable to testify about collateral matters which have nothing to do with their role as a judge because there is no nexus between the judicial role and the collateral matter; and 5. Judges are immune from testifying in court proceedings arising out of matters where such judges presided" - See paragraph 33.

Courts - Topic 313

Judges - Independence of judiciary - Judicial immunity - Hahn was charged with criminal harassment of Justice Smith, contrary to s. 264 of the Criminal Code - Hahn filed a preliminary application for a stay of the charge pursuant to ss. 7, 9, 11(e) and 24(1) of the Charter - The application for a stay was made on the basis that there was a reasonable apprehension of bias on the part of the Chief Justice Popescul of the Court of Queen's Bench for Saskatchewan when he conducted a bail review of an order denying Hahn bail - Hahn applied to issue a subpoena duces tecum compelling Chief Justice Popescul to attend court and give testimony in the Charter application, along with all electronic mail messages, memoranda and other documentation relating to Hahn that were either created by or received by the Chief Justice in the course of his administrative duties respecting this matter - The Saskatchewan Court of Queen's Bench dismissed the application to issue a subpoena - The Chief Justice was immune from testifying respecting the matters outlined by Hahn's counsel - The Chief Justice received the memos and emails as part of his judicial administrative role and he was immune from testifying about them on that basis - The testimony sought respecting the memos and emails was also referable to and sought to attack the thought process of the Chief Justice - The second line of questioning Hahn proposed to ask the Chief Justice concerned his relationship to Justice Smith as a colleague and friend, and whether the two judges had discussed the Hahn case - Those issues too were referable to the state of mind or thought processes of the judge and the Chief Justice was therefore immune from testifying about those issues - Put simply, any testimony Hahn sought to elicit from the Chief Justice was referable to his role qua judge - A more fundamental bar to the Chief Justice testifying was that judges were absolutely immune from testifying respecting proceedings on which they had earlier presided - If judges were compellable to testify in this circumstance, both their independence and impartiality would be compromised.

Courts - Topic 314

Judges - Independence of judiciary - Institutional independence - [See both Courts - Topic 313 ].

Courts - Topic 592

Judges - Duties - Duty to conduct fair and impartial proceedings - [See both Courts - Topic 313 ].

Evidence - Topic 4481

Witnesses - Attendance and oath - Attendance - Subpoena duces tecum - Issuance of - [See second Courts - Topic 313 ].

Evidence - Topic 5608

Witnesses, competency and compellability - Compellability - Judges and justices of the peace - [See both Courts - Topic 313 ].

Cases Noticed:

R. v. L.E.C. (2012), 408 Sask.R. 30; 2012 SKQB 410, refd to. [para. 17].

Beauregard v. Canada, [1986] 2 S.C.R. 56; 70 N.R. 1, refd to. [para. 19].

Duke of Buccleuch v. Metropolitan Board of Works (1872), L.R. 5 H.L. 418, refd to. [para. 20].

MacKeigan, J.A. et al. v. Royal Commission (Marshall Inquiry), [1989] 2 S.C.R. 796; 100 N.R. 81; 94 N.S.R.(2d) 1; 247 A.P.R. 1, refd to. [para. 21].

Kosko v. Bijimine, 2006 QCCA 671, refd to. [para. 24].

Condessa Z Holdings Ltd. v. Brown's Plymouth Chrysler Ltd. et al. (1993), 109 Sask.R. 170; 42 W.A.C. 170; 104 D.L.R.(4th) 96 (C.A.), refd to. [para. 25].

Clendenning and Board of Police Commissioners for the City of Belleville, Re (1976), 75 D.L.R.(3d) 33 (Ont. Div. Ct.), refd to. [para. 26].

Edwards v. Canada (Attorney General) (1999), 46 O.R.(3d) 447 (Sup. Ct.), refd to. [para. 27].

Riverside Terrace Realty Ltd. v. North Vancouver (District) (1992), 6 C.P.C.(3d) 376 (B.C.S.C.), refd to. [para. 31].

Family and Children's Services for London and Middlesex v. Barfoot (1985), 49 R.F.L.(2d) 55 (Ont. Dist. Ct.), refd to. [para. 32].

Wewayakum Indian Band v. Canada and Wewayakai Indian Band, [2003] 2 S.C.R. 259; 309 N.R. 201; 2003 SCC 45, refd to. [para. 35].

Counsel:

William G. Burge, for the Crown;

Christopher R. Murphy, for the accused;

Aaron A. Fox, Q.C., for the Honourable Chief Justice Martel D. Popescul.

This application was heard before Ottenbreit, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Saskatoon, who delivered the following judgment on August 19, 2013.