Nunavut judge won’t recuse himself from trial

In a stinging judgment issued this week, Justice Robert Kilpatrick has rejected a defence lawyer’s request that he step down from the trial of a man whose preliminary inquiry he heard about a year ago.

The defence lawyer, Scott Wheildon of Iqaluit, represents a man named Willie Noah, who is charged with unspecified offences.

In October 2009, Kilpatrick presided over Noah’s preliminary inquiry, a process held to decide if there is enough evidence to justify sending an accused person to trial.

In Noah’s case, Kilpatrick committed Noah to a trial that was set to start in October 2010.

Within Nunavut’s one-level court system, a common practice is for one judge to hear the preliminary inquiry in a case, while another judge is assigned to the trial.

But at the time, Kilpatrick was the only judge available to preside over Noah’s trial.

“Two judges of this court were out of the jurisdiction. One judge was set to preside over a lengthy civil trial. There were no deputy judges available to the court. It was not possible to reassign judges at this late stage of the proceedings without causing further delay to both matters set for trial,” Kilpatrick said in this judgment.

Wheildon applied to have Kilpatrick recuse himself from Noah’s case, saying that because Kilpatrick had heard certain evidence during the preliminary inquiry, there was “a reasonable apprehension of bias.”

Crown lawyer Amy Porteous supported Wheildon’s application.

But Kilpatrick ruled the application is “entirely without merit” and, if successful, would have undermined the position of judges throughout Canada.

“It is an assault upon judicial impartiality and undermines the very foundations of judicial objectivity that have been in place for hundreds of years,” Kilpatrick said.

To support his rejection of Wheildon’s application, Kilpatrick pointed out that all judges routinely hear evidence against accused persons in voir dire hearings — special processes held to decide the admissibility of evidence — that is highly prejudicial to the accused.

And when evidence they hear is ruled inadmissable, judges are routinely expected to put it out of their minds and consider only the evidence put before them at trial, Kilpatrick said.

“An informed member of the public expects the judge to have the legal training, experience and intellectual discipline necessary to do so… That is what being a judge is all about,” Kilpatrick said.

He said no accused person has the right to demand a different judge every time they appear in court

“Such an expectation is unworkable. It forms no part of what a right thinking and informed member of the public, thinking realistically and practically, expects of the judiciary in this country,” Kilpatrick said.

And he said that if Wheildon’s application were to succeed, it would become virtually impossible to hold trials in Nunavut or any other remote or rural area of the country.

“The judicial officers who preside in the remote rural regions of this country, and who are typically few in number, would quickly be disabled from presiding in their areas by so broad a test,” he said.