R. v. Hewitt

Parties

Procedural Posture

Criminal Voir Dire / Recusal Application During Voir Dire Prior to Trial

Legal Issues

1. 1 Whether a judge must recuse for a reasonable apprehension of bias arising from a prior solicitor-client relationship with a potential witness
2. 2 Whether perceived possession of privileged information by the judge that cannot be disclosed breaches the open court principle and fundamental justice
3. 3 Whether the public perception of possible unconscious influence is sufficient to meet the recusal threshold

Ratio Decidendi

Recusal was required because the judge's prior solicitor-client relationship with a potential witness created a reasonable apprehension of bias and because the judge was perceived to possess privileged information that could not be revealed in open court, thereby undermining the open court principle and the accused's right to a fair trial.

Court Disposition

Application allowed; the presiding judge recused himself.

Orders

• The Honourable Mr. Justice Silverman recused himself from presiding over the trial.
• Ban on publication of these Reasons until the jury returns a verdict or the accused re-elects to be tried by judge alone pursuant to ss. 486.4(1) and 486.5(9) of the Criminal Code of Canada.