R. v. J.L.M.A., (2009) 464 A.R. 289 (CA)

• Judge: Fraser, C.J.A., Côté, O'Brien and Watson, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: October 14, 2009
• Citations: (2009), 464 A.R. 289 (CA);2009 ABCA 344

R. v. J.L.M.A. (2009), 464 A.R. 289 (CA);

      467 W.A.C. 289

MLB headnote and full text

Temp. Cite: [2009] A.R. TBEd. OC.146

Her Majesty the Queen (respondent/appellant) v. J.L.M.A. (applicant/respondent)

(0803-0284-A; 2009 ABCA 344)

Indexed As: R. v. J.L.M.A.

Alberta Court of Appeal

Fraser, C.J.A., Côté, O'Brien and Watson, JJ.A.

October 23, 2009.

Summary:

An accused was convicted of sexual assault and sentenced. The Crown filed a Notice of Appeal on November 7, 2008. On February 18, 2009, the Crown filed a Notice of Application for leave to reconsider four previously decided sentencing cases of the Court of Appeal. Each was a memorandum of judgment. A motions panel granted leave to reconsider the four cases.

Berger, J.A., of the Alberta Court of Appeal, in a decision reported at 464 A.R. 122; 467 W.A.C. 122, recused himself where he had authored three of the four memorandum under reconsideration and they made his position on the issue under appeal clear. The Criminal Trial Lawyers Association applied for leave to intervene in the appeal.

The Alberta Court of Appeal, per Watson, J.A., dismissed the motion. See 464 A.R. 310; 467 W.A.C. 310. The accused moved for the recusal of four of the five members of the panel assigned to hear the appeal (Fraser, C.J.A., Côté, O'Brien and Watson, JJ.A.).

Fraser, C.J.A., Côté, O'Brien and Watson, JJ.A., of the Alberta Court of Appeal, individually concluded that they were not disqualified from hearing the appeal.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Courts - Topic 691

Judges - Disqualification - Bias - Reasonable apprehension of bias - The Alberta Court of Appeal, per Côté, J.A., stated that "There is a strong presumption that judges will be true to their oaths, and will decide an upcoming case on its evidence, applying the law as best they can, without fear or favor. So it takes strong grounds to make out a reasonable apprehension of bias on grounds of prejudgment (as distinguished from financial or family interest). ... As many cases have said ... the test is what a reasonable observer would think who is fully informed and has thought the matter through, not an observer with a suspicious mind or a mind too sensitive ... Subject to the strong presumption of impartiality of judges described above, the test is similar for prejudgment by administrative tribunals and for judges. It is not whether the judge or tribunal member has opinions or has previously expressed them. It is whether his or her mind is closed, or strongly resistant to persuasion, and cannot be swayed by reasonable argument or evidence (as assessed by that reasonable observer). ... Counsel for the respondent here spoke of a past display of an 'inclination'. That is not enough. ... Parties are entitled to a fair judge, but not an ignorant, unqualified, gullible, or untrained one ... Nor can a party insist upon getting a judge without life or professional experiences, sympathies, antipathies, attitudes, or humanity. The judge is supposed (like everyone else) to have those, but to be aware of and allow for them ... Still less is a party entitled to a panel, some or all of whom are more receptive to that party's views than to his opponent's views. ... A judge might be disqualified if his or her relevant previous views are vehement and intemperate ..." - See paragraphs 17, 18, 23, 24 and 26.

Courts - Topic 691

Judges - Disqualification - Bias - Reasonable apprehension of bias - An accused was convicted of sexual assault and sentenced - The Crown filed a Notice of Appeal on November 7, 2008 - On February 18, 2009, the Crown filed a Notice of Application for leave to reconsider four previously decided sentencing cases of the Court of Appeal - Each was a memorandum of judgment - Practice Direction A4 read as follows: "4. Precedent - Previous memoranda of the Court in sentencing cases have little weight as precedent: see R. v. Johnas (CA 1982) 41 AR 183, 196, and R. v. Beaver (CA 1984) 51 AR 159, 160." - A motions panel granted leave to reconsider the four cases - The accused moved for the recusal of four of the five members of the panel assigned to hear the appeal (Fraser, C.J.A., and Côté, O'Brien and Watson, JJ.A.), on the basis of a reasonable apprehension of bias - Fraser, C.J.A., and Côté, O'Brien and Watson, JJ.A., of the Alberta Court of Appeal, individually concluded that they were not disqualified from hearing the appeal.

Courts - Topic 691

Judges - Disqualification - Bias - Reasonable apprehension of bias - The Alberta Court of Appeal, per Fraser, C.J.A., stated that no member of the court was disqualified from hearing an appeal by virtue of a procedural rule as agreed upon by the court - As a collegial court, the members of the court had agreed to be bound by agreed-upon court practices and procedures - The court was not aware of any authority that required a judge to recuse himself or herself if the judge was the author of a challenged direction, notice or rule as part of his or her present duties, whether as Chief Justice or otherwise - Having previously expressed an opinion on a point of law did not create a reasonable apprehension of bias, and therefore did not justify recusal - A judge's earlier interpretation of a procedural rule could not give rise to an apprehension of bias - Still less could a judge's restatement of a procedural rule agreed to by a court and endorsed in a precedent of that court give rise to a reasonable apprehension of bias - See paragraphs 54 to 75.

Courts - Topic 692

Judges - Disqualification - Bias - Arising out of expressed opinions on legal issues - [See third Courts - Topic 691 and Courts - Topic 2109 ].

Courts - Topic 692

Judges - Disqualification - Bias - Arising out of expressed opinions on legal issues - The Alberta Court of Appeal, per Côté, J.A., held that "... having previously expressed opinions on a relevant question of law does not disqualify a judge for bias. ... Indeed, a judge is not disqualified even if he or she has expressed or reached previously, in the same case, an opinion on a topic which comes up again for decision again ... Similarly, it is not disqualifying bias for the same panel in the same appeal to suggest that the decision in question may be wrong, citing previously overlooked authority and seeking argument on the point" - See paragraphs 14 to 16.

Courts - Topic 2109

Jurisdiction - Appellate jurisdiction - Reconsideration of decisions - The Alberta Court of Appeal, per Côté, J.A., stated that "The idea that an appeal court can rehear and reconsider a legal question which it has previously dealt with, only by use of judges new to the topic, seems to me novel, unjust, and very impractical." - See paragraph 39.

Courts - Topic 2703

Appeal courts - General - Complement or panel - An accused was convicted of sexual assault and sentenced - The Crown appealed - Subsequently, the Crown applied for leave to reconsider four previously decided sentencing cases of the Court of Appeal - The accused moved for the recusal of four of the five members of the panel assigned to hear the appeal (Fraser, C.J.A., and Côté, O'Brien and Watson, JJ.A.) - The Alberta Court of Appeal, per Côté, J.A., stated that "Appeal courts have long-standing practices to allow for different viewpoints or attitudes among their judges. In the first place, usually statute precludes the court from hearing appeals with fewer than three judges. Second, usually those judges are selected randomly. In the third place, where reconsidering the correctness of the court's previous decision is in issue, very often the panel is expanded to five, by adding two additional judges. I know of no modern appeal court in North America with more than five members which ever has all of them sit on an appeal. The impracticalities of such a hearing would be very daunting. American en banc (rehearing) procedures do not entail the whole court's sitting. The Supreme Court (second level of appeal) in Canada, the U.S.A., and American states involve different considerations; but even they often sit with only some of their members. No such ultimate court is bigger than about nine judges. In oral argument, counsel for the respondent withdrew her request that all 17 (actually 16) Justices of Appeal on the Court hear this appeal. So I need not pursue the respondent's puzzling written suggestion that I am (and three other panel members are) disqualified but that I (we) should sit with all the other members of the Court." - See paragraphs 40 and 41.

Cases Noticed:

R. v. L.S.Y. (2009), 457 A.R. 15; 487 W.A.C. 15; 242 C.C.C.(3d) 441; 2009 ABCA 89, refd to. [para. 11].

Beier et al. v. Subdivision and Development Appeal Board (Vermilion River (County)), [2008] A.R. Uned. 40; 2008 ABCA 297, refd to. [para. 11].

Beier et al. v. Subdivision and Development Appeal Board (Vermilion River (County)) (2009), 457 A.R. 191; 457 W.A.C. 191; 2009 ABCA 151, refd to. [para. 11].

Beier et al. v. Subdivision and Development Appeal Board (Vermilion River (County)) (2009), 464 A.R. 242; 467 W.A.C. 242; 2009 ABCA 338, refd to. [para. 11].

Arsenault-Cameron et al. v. Prince Edward Island, [1999] 3 S.C.R. 851; 267 N.R. 386; 201 Nfld. & P.E.I.R. 1; 605 A.P.R. 1, refd to. [para. 14].

Canadian National Railways v. Canadian Human Rights Commission (1985), 64 N.R. 312 (F.C.A.), refd to. [para. 14].

Ellis-Don Ltd. v. Labour Relations Board (Ont.) et al. (1992), 64 O.A.C. 321; 98 D.L.R.(4th) 762 (Div. Ct.), refd to. [para. 14].

R. v. Toth (1991), 63 C.C.C.(3d) 273 (B.C.C.A.), leave to appeal refused (1991), 136 N.R. 404; 3 B.C.A.C. 23; 7 W.A.C. 23; 64 C.C.C.(3d) vi (S.C.C.), refd to. [para. 14].

Buffalo et al. v. Canada (Minister of Indian Affairs and Northern Development), [1998] 3 F.C. 3; 141 F.T.R. 109 (T.D.), affd. (1998), 227 N.R. 386 (F.C.A.), refd to. [para. 14].

Vivace Tavern Inc. et al. v. Ontario et al., [2005] O.T.C. 450; 77 O.R.(3d) 371 (Sup. Ct.), refd to. [para. 14].

McElheran v. Canada et al., [2006] A.R. Uned. 869; 2006 ABCA 161, refd to. [para. 14].

Krop v. College of Physicians and Surgeons (Ont.) (2002), 156 O.A.C. 77 (Div. Ct.), refd to. [para. 14].

R. v. Perciballi (P.) et al. (2001), 146 O.A.C. 1; 54 O.R.(3d) 346 (C.A.), affd. [2002] 2 S.C.R. 761; 289 N.R. 376; 161 O.A.C. 201; 2002 SCC 51, refd to. [para. 15].

Canada Deposit Insurance Corp. v. Commonwealth Trust Co. (Liquidation) et al., [1993] B.C.T.C. Uned. B50; 106 D.L.R.(4th) 636; 23 C.B.R.(3d) 9 (S.C.), leave to appeal denied (1993), 35 B.C.A.C. 296; 57 W.A.C. 296 (C.A.), refd to. [para. 15].

Blueberry River Indian Band et al. v. Canada (Minister of Indian Affairs and Northern Development) (1999), 171 F.T.R. 91 (T.D.), refd to. [paras. 15, 65].

R. v. Bolt (R.I.) (1995), 162 A.R. 204; 83 W.A.C. 204 (C.A.), refd to. [para. 15].

Broda v. Broda (2001), 286 A.R. 120; 253 W.A.C. 120; 2001 ABCA 151, refd to. [para. 15].

Vysek v. Nova Gas International Ltd. et al. (2002), 303 A.R. 209; 273 W.A.C. 209; 2002 ABCA 112, refd to. [para. 15].

Tracy et al. v. Instaloans Financial Solution Centres (B.C.) Ltd. et al., [2009] 4 W.W.R. 236; 268 B.C.A.C. 83; 452 W.A.C. 83; 2009 BCCA 110, refd to. [paras. 15, 65].

Dykun v. Odishaw et al. (2001), 286 A.R. 392; 253 W.A.C. 392; 2001 ABCA 204, refd to. [para. 15].

Schwormstede v. Schwormstede (1993), 141 A.R. 263; 46 W.A.C. 263 (C.A.), refd to. [para. 15].

Lougheed Enterprises Ltd. et al. v. Armbruster, [1992] 2 W.W.R. 657; 10 B.C.A.C. 226; 21 W.A.C. 226 (C.A.), refd to. [para. 16].

Boardwalk Reit LLP v. Edmonton (City) et al. (2008), 437 A.R. 199; 433 W.A.C. 199; 2008 ABCA 176, refd to. [para. 17].

R. v. Bagot (H.P.), [2000] 6 W.W.R. 714; 145 Man.R.(2d) 260; 218 W.A.C. 260 (C.A.), refd to. [para. 17].

R. v. Trang (D.) (2002), 332 A.R. 1; 17 Alta. L.R.(4th) 358; 2002 ABQB 130, refd to. [para. 17].

R. v. R.D.S., [1997] 3 S.C.R. 484; 218 N.R. 1; 161 N.S.R.(2d) 241; 477 A.P.R. 241; 118 C.C.C.(3d) 353, refd to. [paras. 18, 72].

Canadian Pacific Ltd. v. Matsqui Indian Band et al., [1995] 1 S.C.R. 3; 177 N.R. 325, refd to. [para. 18].

Blacklaws et al. v. 470433 Alberta Ltd. (2000), 261 A.R. 28; 225 W.A.C. 28; 2000 ABCA 175, refd to. [paras. 20, 68].

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. 21].

Save Richmond Farmland Society et al. v. Richmond (Township) et al., [1990] 3 S.C.R. 1213; 116 N.R. 68; 52 B.C.L.R.(2d) 145; 2 M.P.L.R.(2d) 288, refd to. [para. 23].

Locabail (U.K.) Ltd. v. Bayfield Properties Ltd., [2000] Q.B. 451; [2000] 1 All E.R. 65 (C.A.), refd to. [para. 26].

White Resource Management Ltd. v. Durish, [1997] A.R. Uned. 132; [1997] A.U.D. 1083 (C.A.), refd to. [para. 30].

McElheran v. Canada et al., [2006] A.R. Uned. 869; 2006 ABCA 161, refd to. [para. 30].

Boardwalk Reit LLP v. Edmonton (City) et al. (2008), 437 A.R. 199; 433 W.A.C. 199; 2008 ABCA 176, refd to. [para. 30].

Robertson v. Edmonton Chief of Police et al. (2004), 362 A.R. 44; 2004 ABQB 519, refd to. [para. 31].

MacEwan v. Henderson (2003), 219 N.S.R.(2d) 183; 692 A.P.R. 183; 2003 NSCA 133, refd to. [para. 31].

MacKinnon v. MacKinnon et al. (2001), 203 Nfld. & P.E.I.R. 355; 610 A.P.R. 355; 12 C.P.C.(5th) 76; 2001 PESCAD 20, refd to. [para. 31].

Macphail v. MacKinnon - see MacKinnon v. MacKinnon.

Broda v. Broda (2001), 286 A.R. 120; 253 W.A.C. 120; 2001 ABCA 151, refd to. [para. 65].

Vivace Tavern Inc. et al. v. Ontario et al., [2005] O.T.C. 450; 77 O.R.(3d) 371 (Sup. Ct.), refd to. [para. 65].

R. v. Brady (J.R.) (1998), 209 A.R. 321; 160 W.A.C. 321; 1998 ABCA 7, refd to. [para. 68].

R. v. Kain (K.) (2004), 348 A.R. 159; 321 W.A.C. 159; 2004 ABCA 127, refd to. [paras. 70, 77, 84].

R. v. Jefferson (A.A.) (2008), 440 A.R. 310; 438 W.A.C. 310; 2008 ABCA 365, refd to. [paras. 70, 84].

R. v. Lyons (E.J.) (2005), 371 A.R. 74; 354 W.A.C. 74; 2005 ABCA 258, refd to. [para. 76].

R. v. Sandercock, [1986] 1 W.W.R. 291; 62 A.R. 382; 40 Alta. L.R.(2d) 265 (C.A.), refd to. [paras. 77, 84].

R. v. Rahime (S.) et al., [2001] 10 W.W.R. 428; 286 A.R. 377; 253 W.A.C. 377; 2001 ABCA 203, refd to. [para. 77].

R. v. Law (B.K.) (2007), 409 A.R. 190; 402 W.A.C. 190; 2007 ABCA 203, refd to. [para. 82].

R. v. C.E.N. (2004), 357 A.R. 255; 334 W.A.C. 255; 2004 ABCA 310, refd to. [para. 84].

R. v. White (S.C.) (2008), 440 A.R. 43; 438 W.A.C. 43; 2008 ABCA 328, refd to. [para. 84].

Authors and Works Noticed:

Abrams, Linda S., and McGuinness, Kevin P., Canadian Civil Procedure Law (1st Ed. 2008), pp. 70 to 79 [para. 12].

Alberta Court of Appeal, Consolidated Practice Directions (February 4, 1991), Part A4 [Appendix A; para. 57].

American Bar Association, Annotated Code of Judicial Conduct, p. 193 [para. 14].

Bryden, Philip, Legal Principles Governing the Disqualification of Judges (2003), 82 Can. Bar Rev. 555, pp. 586 to 589 [para. 12].

Halsbury's Laws of Canada: Civil Procedure I (2008), pp. 233 to 241 [para. 12].

Counsel:

J.B. Dartana, for the respondent/appellant;

A. Simic and D.J. Song, for the applicant/respondent.

This application was heard and decided on October 14, 2009, by Fraser, C.J.A., and Côté, O'Brien and Watson, JJ.A., of the Alberta Court of Appeal. On October 23, 2009, Fraser, C.J.A., and Côté, O'Brien and Watson, JJ.A., delivered the following memorandums on judgment:

Fraser, C.J.A. - see paragraphs 1, 54 to 75;

Côté, J.A. - see paragraphs 2 to 53;

O'Brien, J.A. - see paragraphs 76 to 80;

Watson, J.A. - see paragraphs 81 to 90.