Citation

2002 NBQB 350 S/CR/8/02

IN THE COURT OF QUEEN'S BENCH OF NEW BRUNSWICK

TRIAL DIVISION

JUDICIAL DISTRICT OF SAINT JOHN

BETWEEN:

Her Majesty the Queen

-and-

Stephen Charles Osborne

BEFORE: Justice J. Roger McIntyre

HEARING HELD: Saint John

DATE OF HEARING: October 21, 2002

DATE OF DECISION: October 21, 2002

APPEARANCES:

Manu C. Patel, Q.C., appearing for Her Majesty the Queen

Stephen Charles Osborne, per se

D E C I S I O N

McIntyre, J.(Orally)

The accused, Osborne, is charged with three counts of defamatory liable contrary to Section 301 of the Criminal Code of Canada. The accused has elected to be tried by a Court composed of judge and jury. I have been assigned to preside over the case as a judge of the Court of Queen's Bench of New Brunswick, Trial Division. The person he is alleged to have defamed is a Justice of the Court of Queen's Bench of New Brunswick. Mr. Osborne argues that by virtue of that fact, no judge of the Court of Queen's Bench of New Brunswick can be impartial in presiding over his trial and, hence, there is a reasonable apprehension of bias. He requests, in this motion, that the judge presiding at his trial be a judge other than a judge of the Court of Queen's Bench of New Brunswick. He maintains his election for a trial by judge and jury.

Subsection 536(2) of the Criminal Code of Canada states that if an accused is charged with an offence other than a Section 469 offence, and one over which the provincial court does not have absolute jurisdiction under Section 553 of the Criminal Code, the accused must be put to his election; election to be tried by provincial court judge, by judge alone, meaning a judge of the Court of Queen's Bench sitting alone, or judge and jury. Subsection 536(4) states that if the accused elects trial by judge alone or trial by judge and jury, a preliminary hearing is held, and if the accused is ordered to stand trial, the trial is before a judge of the Court of Queen's Bench alone, if the accused so elected, or before a jury presided by a judge of the Court of Queen's Bench, if the accused elected trial by judge and jury.

In the present case, the accused elected trial by judge and jury. A preliminary hearing was held and the accused was ordered to stand trial. The trial by jury will be presided by a judge of the Court of Queen's Bench. Under the present provisions of the Criminal Code of Canada, trials by jury must be conducted by a superior court of criminal jurisdiction in the particular province in which the trial is held. Pursuant to the definition of superior court of criminal jurisdiction in Section 2 of the Criminal Code of Canada, in the province of New Brunswick, the superior court of criminal jurisdiction is the Court of Queen's Bench. No other judge in the province of New Brunswick may preside over a jury trial other than a judge of that court.

REASONABLE APPREHENSION OF BIAS

With respect to the issue of bias, Mr. Osborne was quite candid in stating to the court that he has no evidence of actual bias but that a reasonable apprehension of bias stemmed from the fact that the presiding judge in this case, myself, is a confrere of the person alleged to have been defamed, Mr. Justice Raymond Guerette.

I quote here from the headnote in R v. S (RD), [1997] 3 S.C.R. 484, a decision of the Supreme Court of Canada:

The apprehension of bias must be a reasonable one held by reasonable and right-minded persons, applying themselves to the question and obtaining thereon the required information. The test is what would an informed person, viewing the matter realistically and practically - and having thought the matter through - conclude. [...]

[...]The jurisprudence indicates that a real likelihood or probability of bias must be demonstrated and that a mere suspicion is not enough. The existence of a reasonable apprehension of bias depends entirely on the facts. The threshold for such a finding is high and the onus of demonstrating bias lies with the person who is alleging its existence. The test applies equally to all judges, regardless of their background, gender, race, ethnic origin or any other characteristic.

[...] Before finding a reasonable apprehension of bias, the reasonable person would require some clear evidence that the judge in question had improperly used his or her perspective in the decision-making process; this flows from the presumption of impartiality of the judiciary. [...]

In the present case, I find the threshold has not been met. I find no merit to the motion of the accused and the motion is denied.

___________________________________

J. Roger McIntyre

A Judge of the Court of Queen's Bench

of New Brunswick

October 21, 2002

Saint John, N.B.