Provincial court judge removed from N.S. case
The Supreme Court of Nova Scotia has removed a provincial court judge from a case and ordered that it be heard by another judge.
Justice Cindy Bourgeois said in her decision released Tuesday that comments made by the provincial court judge showed a "reasonable apprehension of bias" in favour of one of the parties in the case, which involved charges related to fisheries regulations.
Bourgeois said Robert Stroud made several remarks in court earlier this year that may have given the perception of bias because of their cumulative effect.
"The comments would certainly contribute to a reasonable person concluding there was a reasonable apprehension of bias, and that the provincial court judge's mind was not 'perfectly open' to the positions of both parties," Bourgeois wrote in her 21-page decision after hearing arguments last month in Sydney.
She cited an instance when Stroud said he was convinced of the Crown's position on a jurisdictional question before he had heard arguments from the defence.
Ralph Ripley, the defence lawyer who sought to have Stroud removed from the case, wanted to have some documents excluded from the hearing last March.
The question arose as to whether the provincial court judge had the jurisdiction to hear a charter rights argument over several notebooks and other documents seized in the case.
"I just think, I am convinced by the Crown's argument that you have no basis for this — it has no merit," Stroud said in a section of the transcript included in Bourgeois's decision.
Stroud decided not to recuse himself from the case, suggesting in court that Ripley was judge-shopping.
He also told Ripley that he had not come to a final decision on the question of the court's jurisdiction.
"After 24 years on the bench I think I am capable of being unconvinced, maybe I was a little too strong in saying I was convinced, but I did say I was impressed with the Crown's brief but that doesn't mean I have come to a final conclusion," he said in the transcript.
Ripley said he was pleased with the Supreme Court decision, adding that it's unusual for a judge to be recused from a case that way.
"Most of the time the judges remove themselves if they think that there's an apprehension of bias," he said.
"Most of the time the parties don't have to raise it."
Bourgeois also ordered that the case be heard by another provincial court judge.
Ripley said they didn't lose much time since they had just begun hearing the case.
In the Supreme Court decision, Bourgeois describes the circumstances facing the judge as unusual.
"Several comments within the transcript suggest that in hindsight, the provincial court judge may have declined to hear this matter if he had been aware of the nature of the charges and the position being advanced by counsel," Bourgeois wrote.
"I have no doubt that the provincial court judge tried to do his best with a difficult situation."