Decision Content
R. v. Bouvier, 2017 NWTSC 45
S-1-CR2016000065
IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES
IN THE MATTER OF:
HER MAJESTY THE QUEEN
- vs. -
MARTY BOUVIER
_________________________________________________________
Transcript of the Decision (Defence Application to Recuse
Her Honour) by The Honourable Justice S. H. Smallwood, at
Yellowknife in the Northwest Territories, on April 5th
A.D., 2017.
_________________________________________________________
APPEARANCES:
Mr. B. Green: Counsel for the Crown
Mr. J. Bran, agent
Ms. A. Seaman: Counsel for the Accused
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No information shall be published in any document or
broadcast or transmitted in any way which could identify
the victim or a witness in these proceedings pursuant to
s. 486.4 of the Criminal Code
An Order of the Court has been made prohibiting
publication, broadcast, or transmission of information
contained herein pursuant to s. 648 of the Criminal Code
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1 THE COURT: Good morning.
2 MR. GREEN: Good morning, Your Honour.
3 MR. BRAN: Good morning, Your Honour, I
4 am appearing as agent for Mr. Bouvier's
5 counsel. Mr. Bouvier is appearing by video
6 and I have spoken to him, and we are ready to
7 receive the Court's decision.
8 THE COURT: Okay, thank you.
9 So first, we will deal with the decision
10 which I had given on the previous date, on the
11 27th, following the application for the change
12 of venue regarding the recusal application
13 made by defence.
14 So the accused Marty Bouvier is charged on
15 an Indictment with two counts, that he
16 committed a sexual assault on J.C. contrary to
17 section 271 of the Criminal Code, and that he
18 uttered a threat to J.C. to cause death to her
19 and her family contrary to section 264.1(1)(a)
20 of the Criminal Code, both of which are
21 alleged to have occurred on January 1st, 2016,
22 in Behchokò.
23 Mr. Bouvier has elected trial by Judge and
24 jury, and the trial has yet to be scheduled.
25 The Crown brought an application to have
26 the venue of the trial moved from Behchokò and
27 the grounds for seeking the change of venue
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1 were stated to be that it would be
2 impracticable to impanel a jury in Behchokò
3 given the notoriety of the accused, and that
4 it would impose an unnecessary and
5 inappropriate burden on the victim to hold the
6 trial in Behchokò.
7 The application was heard before me on
8 February 27th, 2017, and I reserved decision
9 at that time.
10 Following the application, counsel for Mr.
11 Bouvier requested that I recuse myself from
12 the eventual trial of this matter. I heard
13 submissions from the Crown and the defence and
14 dismissed the application to recuse myself,
15 indicating that reasons would be provided at
16 the next date. So the reasons that I am
17 providing now are on the application for the
18 recusal.
19 The accused's request that I recuse myself
20 was based upon the bad character information
21 that I had heard about the accused during the
22 change of venue application and that the
23 information that had been provided was
24 prejudicial and would impact how I would view
25 the accused and how I would treat him during
26 the trial.
27 The test for a Judge to recuse themselves
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1 is whether the applicant has established that
2 there is a reasonable apprehension of bias on
3 the part of the Judge. The applicable
4 principles were stated by Justice Vertes in
5 Werner v. The Queen, 2005 NWTCA 05 when he was
6 sitting as a member of the Northwest
7 Territories Court of Appeal. I am going to
8 quote several paragraphs of Justice Vertes'
9 decision because it succinctly sets out the
10 applicable principles, starting at paragraph
11 11:
12 That test, for recusal of judges
on the basis of a reasonable
13 apprehension of bias, is
well-established. It is based on
14 the formulation set out by
deGrandpré J. in Committee for
15 Justice and Liberty v. National
Energy Board, 1976 CanLII 2 (SCC),
16 [1978] 1 S.C.R. 369 (at p. 394):
Would the reasonable, right-minded
17 and properly informed person,
viewing the matter realistically
18 and practically, think that there
is a real likelihood or
19 probability of bias so as to
render the trial unfair?
20
This test for recusal has been
21 restated time and again as the
sole test: R. v. R.D.S., 1997
22 CanLII 324 (SCC), [1997] 3 S.C.R.
484; Wewaykum Indian Band v.
23 Canada, 2003 SCC 45 (CanLII),
[2003] 2 S.C.R. 259.
24
There are a number of points that
25 need to be noted so as to provide
context to the issue of judicial
26 recusal.
27 There is a strong presumption of
judicial impartiality and the
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1 threshold for a finding of bias,
real or apprehended, is
2 necessarily high. Thus there must
be cogent grounds. Mere suspicion
3 is not enough. And it is
important to note that the test is
4 not whether a party to the
proceeding (such as the applicant)
5 would reasonably apprehend bias
but whether the reasonable and
6 informed member of the public
would apprehend it.
7
Numerous cases and articles also
8 emphasize the fact that it is not
in the public interest to have
9 judges easily disqualified. A low
standard would lead to delays
10 because it would encourage
tactical motions by litigants
11 seeking another Judge when they
may anticipate an unfavorable
12 outcome. It would also make it
extremely difficult run cases on
13 an efficient basis in small
centres (such as Hay River) where
14 there may be few judges and a
likelihood that litigants who
15 appear frequently in the courts
would often appear before the same
16 judge.
17 These principles were restated recently in
18 Heffel v. Registered Nurses Association 2015
19 NWTSC 16 where, at paragraphs 95 and 97,
20 Justice Schuler stated:
21 The accepted test for reasonable
apprehension of bias was stated by
22 de Grandpré J. in Committee for
Justice and Liberty v. National
23 Energy Board, 1976 CanLII 2 (SCC),
[1978] 1 S.C.R. 369 (at p. 394):
24 “what would an informed person,
viewing the matter realistically
25 and practically - and having
thought the matter through -
26 conclude. Would he think that it
is more likely than not that [the
27 decision-maker], whether
consciously or unconsciously,
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1 would not decide fairly.”
2 The cases note that there is a
strong presumption of judicial
3 impartiality and the threshold for
a finding of real or apprehended
4 bias is high, requiring that there
be cogent grounds. Mere suspicion
5 is not enough. As Vertes J.A.
noted in Werner, the test is not
6 whether a party to the proceeding
would reasonably apprehend bias,
7 but whether the reasonable and
informed member of the public
8 would apprehend it (at paragraph
[14]). The member of the public
9 is one who is reasonable, not a
person of “very sensitive or
10 scrupulous conscience”.
11 In this application, there was evidence
12 that was filed by the Crown, and it was filed
13 in support of the application for the change
14 of venue. It consisted of the offence record
15 report for the accused which indicated that he
16 had a number of convictions, mainly
17 convictions for breaches of court-ordered
18 conditions, that he also had a conviction for
19 an assault in 2015, and a conviction for
20 sexual assault in 2015.
21 Affidavits were also filed by S.C., who is
22 the adoptive mother of the alleged victim in
23 this matter; from John Gouthro, the principal
24 of school in Behchokò, and Constable Bennett,
25 who had been stationed in Behchokò from 2014
26 to 2016.
27 The Crown also filed other material
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1 relating to statistical information regarding
2 the community of Behchokò as well as to the
3 difficulties in selecting juries in Behchokò
4 since 2013.
5 The affidavits that were filed primarily
6 speak to the accused's reputation in the
7 community and his alleged reputation as
8 someone who has committed sexual assaults
9 against young persons. The affidavits refer
10 to the deponents' concerns as well as the
11 concerns that they say that other members of
12 the community have about Mr. Bouvier.
13 They allege that Mr. Bouvier has a
14 reputation in Behchokò and is known amongst at
15 least some members of the community for having
16 committed a sexual assault and perhaps other
17 sexual assaults for which he was either not
18 charged or convicted.
19 Judges are called upon to make
20 applications regarding the admissibility of
21 evidence on a daily basis; for example,
22 whether the accused can be cross-examined on a
23 criminal record, whether a statement given by
24 the accused to the police is admissible,
25 whether prior acts committed by the accused
26 are admissible as similar-fact evidence. Many
27 of these applications involve hearing evidence
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1 that do not cast an accused in a positive
2 light. Judges are required to make a ruling
3 and are then expected to continue on with the
4 trial. It is not presumed that following this
5 that a Judge will be required to recuse
6 themselves because of the bad character or
7 other negative evidence that they have heard
8 about the accused.
9 There is a strong presumption of judicial
10 impartiality. Judges are expected to put
11 aside inadmissible evidence and decide cases
12 impartially and on the basis of the admissible
13 evidence before them. That is not to say that
14 there cannot be situations where a Judge may
15 be in a position where there is real or
16 apprehended bias, but as the cases state there
17 must be cogent grounds and mere suspicion is
18 not enough.
19 The affidavits filed on this application
20 are somewhat vague and do not provide a lot of
21 information about the incidents that Mr.
22 Bouvier is alleged to have committed. It also
23 appears that they refer to incidents for which
24 Mr. Bouvier was either never charged or
25 convicted of a criminal offence. And I am not
26 certain how helpful these affidavits are in
27 terms of providing specific evidence about Mr.
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1 Bouvier's actions, but they do indicate that
2 some members of the community have concerns
3 about Mr. Bouvier and that he has a certain
4 negative reputation amongst those members.
5 Whether those concerns or that reputation is
6 well founded or not is another issue.
7 Mr. Bouvier has also had a show cause
8 hearing on these charges and he has had a
9 section 525 bail review in front of Justice
10 Mahar of this Court. At that hearing, similar
11 information was put before Justice Mahar
12 regarding Mr. Bouvier's background and more
13 specific information was provided regarding
14 the offence itself and his criminal history.
15 If I were to recuse myself on the basis of the
16 information provided at the change of venue
17 application, then it seems that there would be
18 grounds for Justice Mahar to be asked to
19 recuse himself on a similar basis.
20 It may be, as well, that Mr. Bouvier will
21 appear in front of another Judge for another
22 section 525 bail review or another application
23 which could result in another Judge hearing
24 similar information about Mr. Bouvier.
25 As Justice Vertes observed in the Werner
26 case, a low standard for having Judges
27 disqualified would inevitably result in delays
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1 and it can be difficult to have matters
2 proceed expeditiously in this jurisdiction
3 where there are only four resident Supreme
4 Court Judges.
5 In my view, the evidence which has been
6 filed on this application is not sufficient to
7 raise a concern that the Judge hearing the
8 application would have a bias, real or
9 apprehended. A reasonable and informed member
10 of the public would not view the information
11 that was submitted at the change of venue
12 application as resulting in the Judge having a
13 bias against the accused. Members of the
14 public expect Judges to hear these types of
15 applications and then to continue on with the
16 trial. They expect justice to occur in a fair
17 and expeditious manner and not to be delayed
18 or interrupted by a Judge having to recuse
19 themselves following an application where they
20 have heard evidence that is of the type that
21 is regularly considered by a trial Judge.
22 So for these reasons, I dismiss the
23 application to recuse myself.
24 So there is also the issue, Mr. Green,
25 about the publication ban and the notice,
26 which on the last date, the notice
27 requirements had not been complied with.
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1 MR. GREEN: Yes, Your Honour, before we
2 move to that, in your reasons on recusal you
3 did identify S.C. as being the adoptive mother
4 of J.C. In light of the 486.4 publication
5 ban, I would ask that in the transcript or any
6 published reasons that Ms. S.C.'s [initials
7 inserted] name also be anonymized.
8 THE COURT: That's fine.
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11 Certified to be a true and
accurate transcript pursuant
12 to Rules 723 and 724 of the
Supreme Court Rules,
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18 Lois Hewitt,
Court Reporter
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