File
An Ontario judge has been removed from a case in mid-trial because he showed bias against the defendant - a 26-year-old woman who is battling Hodgkin's lymphoma.
The highly unusual move came after the woman, Krystal Lee Hill, said she could no longer expect to get a fair trial from her trial judge - Mr. Justice Gregory Pockele of the Ontario Court of Justice.
Ontario Superior Court John Kennedy concluded that Judge Pockele made inappropriately sarcastic outbursts during the initial portion of Ms. Hill's trial. He said that Judge Pockele intemperately rejected a Charter motion by the defence without hearing legal arguments.
"I am satisfied on the onus required that the applicant has established that bias exists in this case from the trial evidence," Judge Kennedy said. "It is ordered that the applicant should be afforded a new trial before a differently constituted court."
Anthony Moustakalis, a lawyer who represented Ms. Hill, said that it is only the third such ruling he has seen in 27 years as a lawyer. "It is an unusual finding because the court finds actual bias, and not just an appearance of bias," he said.
On April 26, 2009, Ms. Hill was charged with refusing to provide a breath sample after police in London, Ont., stopped the car that she and a friend were travelling in.
At her trial last November, defence counsel Peter Thorning attempted to raise a Charter of Rights issue involving her right to counsel. Judge Pockele took issue because it had been filed 13 days before the hearing, instead of the 15 days that is normally required.
Ms. Hill said that she had had trouble keeping track of the case on account of her chemotherapy treatments and a general apprehension about her health. "Honestly, it's the last thing on my mind," she said. "I mean, it's always there, of course, and I know it's there, but I can't focus on anything else right now."
Judge Pockele initially expressed empathy: "When you are struggling with your mortality on a day-to-day basis, the loss of your driver's licence and some consequent penalty is rather small potatoes," he observed.
However, Judge Pockele proceeded to complain that the London courts "are in crisis" because numerous trials that were scheduled had not proceeded on schedule. Nothing that Ms. Hill's case had already been before the courts on 11 occasions, he rejected her Charter application as being "grossly deficient."
Judge Kennedy found that Judge Pockele was unfairly curt and dismissive when Mr. Thorning sought an adjournment so that a police witness the Crown had not called to the trial could be summoned.
"The scolding that defence counsel was subjected to is inappropriate and is particularly strong evidence of bias," Judge Kennedy said.
In his ruling, Judge Kennedy emphasized that bias - or perceived bias - is a very serious finding that cannot be made without substantial evidence.
"It is a finding that must be carefully considered since it calls into question an element of judicial integrity," he said. "Indeed, an allegation of reasonable apprehension of bias calls into question not simply the personal integrity of the judge, but the integrity of the entire administration of justice."