R. v. Krisko (K.K.), (2016) 325 Man.R.(2d) 299 (PC)

• Judge: Wiebe, P.C.J.
• Court: Provincial Court of Manitoba (Canada)
• Case Date: February 08, 2016
• Jurisdiction: Manitoba
• Citations: (2016), 325 Man.R.(2d) 299 (PC);2016 MBPC 10

R. v. Krisko (K.K.) (2016), 325 Man.R.(2d) 299 (PC)

MLB headnote and full text

Temp. Cite: [2016] Man.R.(2d) TBEd. FE.028

Her Majesty The Queen v. Krisko, Kenneth Kevin (accused)

(2016 MBPC 10)

Indexed As: R. v. Krisko (K.K.)

Manitoba Provincial Court

Wiebe, P.C.J.

February 8, 2016.

Summary:

The accused was charged with impaired driving. Defence counsel intended to raise a Charter issue; namely, that the accused's s. 10(b) Charter rights were breached as he was not given a right to counsel prior to complying with an ASD demand at a roadside checkstop. The trial judge in this case had dismissed that legal argument in R. v. Kozakevech. Defence counsel moved that the trial judge recuse herself on the basis of a reasonable apprehension of bias. The trial judge, before asking counsel to file briefs and arguments, made certain comments to counsel. Defence counsel argued that those comments indicated a predetermination of the motion.

The Manitoba Provincial 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 was charged with impaired driving - Defence intended to argue that the accused's s. 10(b) Charter rights were breached as he was not given a right to counsel prior to complying with an ASD demand at a roadside checkstop - The trial judge in this case had dismissed that legal argument in R. v. Kozakevech (2014) - Defence moved that the trial judge recuse herself on the basis of a reasonable apprehension of bias - The trial judge, before asking that briefs and arguments be filed, made certain comments - Defence argued that those comments indicated a predetermination of the motion - The Manitoba Provincial Court dismissed the motion for recusal - The comments, taken in context, reflected that the court had not heard the evidence and there was no determination as to how similar the facts were to the Kozakevich case - The comments were not about the accused, or witnesses, or credibility - With respect to the Kozakevich decision, "where a decision has been made on an interpretation of the law, and counsel does not agree with that legal interpretation, the proper procedure is to appeal the decision. ...  In this case, I do not find an informed person, viewing the matter realistically and practically - and having thought the matter through - would conclude it is more likely than not that I, whether consciously or unconsciously, would not decide fairly" - See paragraphs 25 to 38.

Cases Noticed:

R. v. Kozakevich (D.) (2014), 307 Man.R.(2d) 219; 2014 MBPC 34, refd to. [para. 2].

Commission scolaire francophone du Yukon No. 23 v. Yukon (Procureure générale), [2015] 2 S.C.R. 282; 471 N.R. 206; 2015 SCC 25, appld. [para. 11].

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, refd to. [para. 14].

R. v. Hossu (E.) (2002), 162 O.A.C. 143; 2002 Carswell 2601 (C.A.), refd to. [para. 16].

R. v. Downer, 1977 CarswellOnt 1115 (Ont. C.A.), refd to. [para. 16].

R. v. Brown (D.) (2003), 170 O.A.C. 131; 2003 CarswellOnt 1312 (C.A.), refd to. [para. 18].

R. v. D'Souza (J.B.) (2004), 189 O.A.C. 55; 2004 Carswell Ont 2981 (C.A.), refd to. [para. 18].

R. v. Nolin (1982), 17 Man.R.(2d) 379; 1982 CarswellMan 112 (C.A.), refd to. [para. 18].

R. v. Trunzo (M.) (2012), 282 Man.R.(2d) 18; 2012 MBQB 211, refd to. [para. 22].

R. v. Ibrahim (M.) (2015), 319 Man.R.(2d) 200; 638 W.A.C. 200; 2015 MBCA 62, refd to. [para. 33].

R. v. Cook (J.G.) (2015), 319 Man.R.(2d) 217; 638 W.A.C. 217; 2015 MBCA 63, refd to. [para. 33].

Counsel:

Joel Myskiw, for the Crown;

Mark Wasyliw, for the accused.

This motion for recusal was heard before Wiebe, P.C.J., of the Manitoba Provincial Court, who delivered the following decision and reasons, dated February 8, 2016.