The applicant, Truckair, successfully applied for judicial review of a Provincial Court judge’s decision not to recuse himself in a hearing about his jurisdiction to decide a Charter issue

Administrative law – Judges – Recusal – Judicial review – Bias

Truckair v Canada, [2011] N.S.J. No. 577, 2011 NSSC 398, Nova Scotia Supreme Court, October 28, 2011, C.A. Bourgeois J.

The applicant (Truckair) was charged with six counts of fishery offences and a search warrant was obtained by investigators. Soon after, an ex parte application was made to extend the time period for retaining the goods. That application was successful. Truckair then brought an application in Provincial Court alleging that his section 8 Charter rights were infringed. Truckair sought to exclude the goods seized pursuant to the initial search warrant. The Crown took the position that the Provincial Court had no jurisdiction to hear the Charter application. The Crown filed various authorities on this issue and those authorities were filed in advance of the hearing. Truckair’s counsel, Mr. Ripley, did not file any authorities on this issue in advance of the hearing.

During the hearing, the judge made various statements to Mr. Ripley, which seemed to suggest that he did not have an open mind about the jurisdictional issue. For instance, the judge said “but I must say I read the crown’s brief and I was very impressed with that, and I am inclined to think the crown is right that I don’t have jurisdiction here…” and “…well that convinced me, you can try to unconvince me if you have arguments to the contrary, but I eh, you know, the brief was pretty thorough…”. Mr. Ripley asked the judge to recuse himself based upon these and other comments made by the judge. In response, the judge indicated his earlier words may have been too strong. The judge also suggested that Mr. Ripley was “judge shopping”. Truckair brought this application for judicial review of the judge’s decision not to recuse himself.

The court held that the circumstances indicated that a reasonably informed person would conclude that the judge was predisposed to decide in favour of one party. The court granted an order of Certiorari overturning the judge’s decision and also granted an order of Mandamus directing the trial and pre-trial motions be heard by another judge.

This case was digested by Scott J. Marcinkow of Harper Grey LLP. If you would like to discuss this case further, please feel free to contact him directly at smarcinkow@harpergrey.com or review his biography at http://www.harpergrey.com.

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