R. v. Naugle (D.B.), (2016) 370 N.S.R.(2d) 204 (PC)

• Judge: Atwood, P.C.J.
• Court: Provincial Court of Nova Scotia (Canada)
• Case Date: February 22, 2016
• Jurisdiction: Nova Scotia
• Citations: (2016), 370 N.S.R.(2d) 204 (PC);2016 NSPC 8

R. v. Naugle (D.B.) (2016), 370 N.S.R.(2d) 204 (PC);

    1165 A.P.R. 204

MLB headnote and full text

Temp. Cite: [2016] N.S.R.(2d) TBEd. FE.042

Her Majesty the Queen v. Dustin Blake Naugle

(Nos. 2950071-8, 2951901-5; 2016 NSPC 8)

Indexed As: R. v. Naugle (D.B.)

Nova Scotia Provincial Court

Atwood, P.C.J.

February 23, 2016.

Summary:

The accused was charged with a number of offences involving violence or threats of violence against the complainant. The Crown sought to have the accused denied bail. The accused applied to have the judge conducting the bail hearing recuse himself based on a reasonable apprehension of bias.

The Nova Scotia Provincial Court dismissed the application.

Courts - Topic 313

Judges - Independence of judiciary - Judicial immunity - [See Evidence - Topic 5608 ].

Courts - Topic 679

Judges - Disqualification - Recusal motion - Procedure - [See Evidence - Topic 5608 ].

Courts - Topic 686

Judges - Disqualification - Bias - By trial or applications judge - [See Courts - Topic 691 ].

Courts - Topic 689

Judges - Disqualification - Bias - Arising out of participation in prior proceedings - [See Courts - Topic 691 ].

Courts - Topic 691

Judges - Disqualification - Bias - Reasonable apprehension of bias - Naugle was charged with a number of offences involving violence and threats of violence - The Crown sought to have Naugle denied bail - Naugle applied to have Atwood, P.C.J., recuse himself from conducting the bail hearing - Naugle argued that there was a reasonable apprehension of bias because of two occasions when Atwood, P.C.J., made adverse findings regarding Naugle's father, who was being proposed as a surety and might testify for the defence in the event of a trial - In November 2013, during an unrelated proceeding involving Naugle, Atwood, P.C.J., found that the father had testified falsely by presenting a fraudulent alibi in defence of Naugle - In December 2010, Atwood, P.C.J., commented adversely on the legal merit of arguments raised by the father in his defence of a summary offence ticket trial - The Nova Scotia Provincial Court dismissed the application - Making findings of credibility based on evidence was a judicial function that a court was supposed to do; it did not involve prejudice and partiality - The fact that the court found the father incredible or uninformed in the past would not cloud its ability to impartially assess his worthiness as a surety or weigh in its assessment of his credibility now.

Evidence - Topic 5608

Witnesses - Competency and compellability - Particular persons - Judges - Naugle was charged with a number of offences involving violence and threats of violence - The Crown sought to have Naugle denied bail - Naugle applied to have Atwood, P.C.J., recuse himself from conducting the bail hearing - Naugle argued that there was a reasonable apprehension of bias because Naugle's father was being proposed as a surety and Atwood, P.C.J., had commented adversely on the legal merit of arguments raised by the father in his defence of a summary offence ticket trial in 2010 - Defence counsel submitted that it would be necessary for Atwood, P.C.J., to testify for the prosecution and give evidence about what he had said in the 2010 trial - The Nova Scotia Provincial Court held that this procedural proposition was legally unsupportable in its entirety - A judge was neither competent nor compellable to give evidence as a witness about a proceeding conducted by that judge - See paragraph 16.

Cases Noticed:

Toronto Star Newspapers Ltd. et al. v. Canada et al. (2010), 402 N.R. 206; 482 A.R. 66; 490 W.A.C. 66; 2010 SCC 21, refd to. [para. 4, footnote 2].

R. v. Colpitts - see R. v. Clarke (B.E.) et al.

R. v. Clarke (B.E.) et al. (2014), 353 N.S.R.(2d) 355; 1115 A.P.R. 355; 2014 NSSC 431, refd to. [para. 6, footnote 3].

R. v. R.D.S. (1997), 218 N.R. 1; 161 N.S.R.(2d) 241; 477 A.P.R. 241 (S.C.C.), refd to. [para. 8, footnote 4].

R. v. Brown (D.) (2003), 170 O.A.C. 131 (C.A.), refd to. [para. 9, footnote 5].

R. v. Jones (R.P.) (2008), 270 N.S.R.(2d) 115; 865 A.P.R. 115; 2008 NSCA 99, refd to. [para. 12, footnote 6].

MacKeigan, J.A., et al. v. Royal Commission (Marshall Inquiry) (1988), 85 N.S.R.(2d) 219; 216 A.P.R. 219 (T.D.), affd. (1988), 87 N.S.R.(2d) 443; 222 A.P.R. 443 (C.A.), affd. [1989] 2 S.C.R. 797; 100 N.R. 81; 94 N.S.R.(2d) 1; 247 A.P.R. 1, refd to. [para. 16, footnote 7].

Counsel:

Jody MacNeil, for the Nova Scotia Public Prosecution Service;

Wayne Bacchus, for Dustin Blake Naugle.

This application was heard on February 22, 2016, before Atwood, P.C.J., of the Nova Scotia Provincial Court, who delivered the following decision on February 23, 2016.