R. v. Kelly (J.), (2012) 334 Nfld. & P.E.I.R. 239 (NLTD(G))

• Judge: Burrage, J.
• Court: Supreme Court of Newfoundland and Labrador (Canada)
• Case Date: November 19, 2012
• Jurisdiction: Newfoundland and Labrador
• Citations: (2012), 334 Nfld. & P.E.I.R. 239 (NLTD(G))

R. v. Kelly (J.) (2012), 334 Nfld. & P.E.I.R. 239 (NLTD(G));

    1037 A.P.R. 239

MLB headnote and full text

Temp. Cite: [2012] Nfld. & P.E.I.R. TBEd. DE.006

Jeffrey Kelly (applicant ) v. Her Majesty the Queen (respondent)

(201201G5765; 2012 NLTD(G) 179)

Indexed As: R. v. Kelly (J.)

Newfoundland and Labrador Supreme Court

Trial Division (General)

Burrage, J.

December 4, 2012.

Summary:

The accused was charged with two counts of common assault and one count of uttering threats. The accused applied for an order prohibiting the trial judge from continuing with the trial, alleging a reasonable apprehension of bias.

The Newfoundland and Labrador Supreme Court, Trial Division (General), dismissed the application.

Courts - Topic 691

Judges - Disqualification - Bias - Reasonable apprehension of bias - The accused was charged with two counts of common assault and one count of uttering threats - The complainants were his spouse and daughter - The accused applied for an order prohibiting the trial judge from continuing with the trial, alleging that interventions by the trial judge gave rise to a reasonable apprehension of bias - The Newfoundland and Labrador Supreme Court, Trial Division (General), discussed the test for reasonable apprehension of bias - The court reviewed the judge's interventions and was not convinced that they were such as to raise a reasonable apprehension of bias or otherwise undermine the fairness of the accused's trial.

Cases Noticed:

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. [para. 10].

R. v. Sussex Justices, Ex. P. McCarthy, [1924] 1 K.B. 256, refd to. [para. 11].

R. v. Brouillard, [1985] 1 S.C.R. 39; 57 N.R. 168, refd. to. [para. 17].

R. v. Valley (1986), 13 O.A.C. 89; 26 C.C.C.(3d) 207 (C.A.), refd to. [para. 18].

R. v. Stewart (1991), 43 O.A.C. 109; 62 C.C.C.(3d) 289; 12 W.C.B.(2d) 20 (C.A.), refd to. [para. 20].

R. v. Stucky (D.) (2009), 256 O.A.C. 4; 240 C.C.C.(3d) 141; 2009 ONCA 151, refd to. [para. 23].

R. v. Dugas (L.E.) (2012), 322 N.S.R.(2d) 72; 1021 A.P.R. 72; 2012 NSCA 102, refd to. [para. 24].

R. v. C.H. (1999), 182 Nfld. & P.E.I.R. 32; 554 A.P.R. 32; 44 W.C.B.(2d) 162 (Nfld. C.A.), refd to. [para. 25].

Counsel:

Nick G. Avis, Q.C., for the applicant;

Lisa M. Stead, for the respondent.

This application was heard in St. John's, N.L., on November 19, 2012, before Burrage, J., of the Newfoundland and Labrador Supreme Court, Trial Division (General), who delivered the following decision on December 4, 2012.