Territorial Court

R. v. Roland HEISINGER           2007 NWTTC 11           File: T1-CR-2007-524




IN THE TERRITORIAL COURT OF THE NORTHWEST TERRITORIES



IN THE MATTER OF:



HER MAJESTY THE QUEEN


- and -


ROLAND HEISINGER
Applicant




REASONS FOR DECISION ON APPLICATION

FOR RECUSAL

OF THE HONOURABLE B.E. SCHMALTZ




Heard at:    Yellowknife, Northwest Territories
     August 29, 2007

Counsel for the Crown:  Maureen McGuire

Counsel for the Applicant:  Appearing on his own behalf




(Section 264.1 x 2 Criminal Code)

R. v. Roland HEISINGER                 2007 NWTTC 11
T1-CR-2007-524


IN THE TERRITORIAL COURT OF THE NORTHWEST TERRITORIES

IN THE MATTER OF:



HER MAJESTY THE QUEEN


- and -


ROLAND HIESINGER




REASONS FOR DECISION ON APPLICATION
FOR RECUSAL OF THE HONOURABLE B.E. SCHMALTZ



[1] Roland Heisinger is currently being tried for 2 counts of uttering threats on or about April 26, 2007, and April 30, 2007, contrary to s. 264.1 of the Criminal Code.  The trial commenced on July 19 and 20, 2007, and is set to continue on September 4, 2007.  At the time the trial commenced, Roland Heisinger was represented by counsel, but has since dismissed his counsel, indicating he wishes to represent himself for the balance of his trial.  Roland Heisinger’s counsel’s application to be removed as counsel of record was allowed on August 29, 2007.

[2] Roland Heisinger has brought an application that I recuse myself from hearing his trial.  Roland Heisinger has submitted a 2 page written document outlining his position; attached to this document are 6 pages containing various copies of what purports to be Roland Heisinger’s criminal record.  Roland Heisinger has also submitted copies of nine Form 19 Remand Warrants with dates ranging from November 14/02 and January 14/03, and a copy of a warrant of committal from the Supreme Court of the Northwest Territories dated March 11, 2003.  Lastly, an Order from the Supreme Court of the Northwest Territories allowing Roland Heisinger’s sentence appeal dated April 24, 2003, was also submitted.

[3] Roland Heisinger’s position on this Application is that I recuse myself alleging that:
1. I forged criminal charges that that kept him in remand;
2. I forged criminal records to mislead the courts;
3. I presided in a civil suit pertaining to custody of his son;
4. I presided over a criminal trial in August 2005, involving Roland
Heisinger;
5. I sentenced a friend of Roland Heisinger’s.
6. I have in the past, both as Crown Counsel and as a presiding judge shown bias against Roland Heisinger, and been discriminatory.

[4] The test that I must apply to this application is:  Would the reasonable, right-minded and properly informed person, viewing the matter realistically and practically, think that there is a real likelihood or probability of bias so as to render the trial unfair?  Would this person think that it is more likely than not that I having previously presided over matters involving Roland Heisenger, or having acted as Crown Counsel over 4 years ago, that I, either consciously or unconsciously, could not decide this trial fairly?  See:  R. v. Werner, [2005] N.W.T.J. No. 97 (C.A.), at paras 11 – 12; Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369 at 394; Wewaykum Indian Band v. Canada, [2003] 2 S.C.R. 259 at paras. 57 – 73.

[5] There is a strong presumption of judicial impartiality and the threshold for a finding of bias, real or apprehended, is a high one.  There must be cogent and compelling reasons before any judge recuses herself, or himself, from a case.  It is important to keep in mind that the test is not whether or not Roland Heisinger may reasonably apprehend bias, but whether a reasonable and informed member of the public would apprehend bias.

[6] I will deal first with the allegation that I have previously presided over matters in which Roland Heisinger was either an accused, or a party, or a friend of an accused, and that I have in the past shown bias against Roland Heisinger (3, 4, 5, and 6 above).  The case law is clear:  an accused having appeared previously before a judge will not require that the judge cannot preside on subsequent matters involving that accused.  This applies whether or not an accused appeared as an accused, a party, or a witness, and whether or not credibility findings were made.  Prior appearances will not in and of themselves require a judge to recuse herself.  As the Alberta Court of Appeal stated in R. v. Bolt, [1995] A.J. No 22, at para. 2:

We are not satisfied that the comments of the learned trial judge on a previous appearance of the appellant, nor his rejection of the evidence of the appellant on another occasion combined with the questioning of the accused in this trial, constitute an appearance of bias.  It is inevitable that there will be occasions when an experienced trial judge will have had some prior judicial contact with an accused.  We are confident that trial judges are capable of disabusing their minds of that fact in considering the guilt or innocence of the accused in relation to the specific charge before them.  Unless real bias can be shown, such prior contact is not a factor in determining an appearance of bias.

[7] In the material that has been relied on by Roland Heisinger, there is nothing that demonstrates real bias.  Roland Heisinger states in his material that I have in the past shown bias against Roland Heisinger, and been discriminatory, however there is no foundation for this statement, nor any details provided.  Therefore I find there is no real bias shown, and consequently, prior contact or prior appearances before me are not even a factor to be considered in determining an appearance of bias.

[8] With respect to number 1 and 2, above, Roland Heisinger simply makes these bold statements with no supporting evidence, documentation, nor detail.  Not surprisingly, I find no merit at all in these statements.  Without any foundation for these allegations, a reasonable, right-minded and properly informed person, viewing the matter realistically and practically, could not think that there is a real likelihood or probability of bias so as to render the trial unfair.

[9] Therefore, the application to have me recuse myself is dismissed, and this trial will continue on September 4th, at 9:30 a.m.





Bernadette E. Schmaltz
                        JTC




Dated this 31st day of August, 2007, at
the City of Yellowknife, Northwest Territories


R. v. Roland HEISINGER.          File: T1-CR-2007-524

2007 NWTTC 11




IN THE TERRITORIAL COURT OF THE NORTHWEST TERRITORIES



IN THE MATTER OF


HER MAJESTY THE QUEEN


- and -

ROLAND HEISINGER





REASONS FOR DECISION ON APPLICATION

FOR RECUSAL

OF THE HONOURABLE B.E. SCHMALTZ